HomeMy Public PortalAboutTBP 2013-05-29 FRASER BOARD OF TRUSTEES
MINUTES
DATE: Wednesday, May 15, 2013
MEETING: Board of Trustees Regular Meeting
PLACE: Fraser Town Hall Board Room
PRESENT
Board: Mayor Pro-Tem Steve Sumrall; Trustees; Philip Naill, Eileen Waldow,
Vesta Shapiro, Cheri Sanders —via phone and Adam Cwiklin
Staff: Town Manager Jeff Durbin; Town Clerk, Lu Berger; Finance Manager Nat
Havens; Public Works Director Allen Nordin; Town Planner, Catherine
Trotter; Police Chief, Glen Trainor, Plant Supervisor Joe Fuqua,
Mayor Smith called the meeting to order at 7:06 p.m.
1. Workshop: Proposed Adoption of the 2009 International Building Code (with
amendments)
2. Regular Meeting: Roll Call
3. Approval of Agenda:
Moving item 8b to 8a.
Trustee Cwiklin moved, and Trustee Naill seconded the motion to approve the Agenda.
Motion carried: 6-0.
4. Consent Agenda:
a) Minutes — May 1, 2013
b) Ordinance No. 405, Amending Chapter 18 Article 4 of the Town Code,Prevention
of Flood Damage
Trustee Waldow moved, and Trustee Shapiro seconded the motion to approve the
consent agenda. Motion carried: -0.
5. Open Forum:
a) Lindsey England — Proposed Plastic Bag Regulations
Ms. England addressed the Board regarding plastic bag regulations. Mayor Pro-Tem
Sumrall addressed the issue of the "taxing" the use of plastic bags and the issues
communities are running into having implemented these fees without going to the voters
to ask for a tax. The staff will research the issue and bring it back to the Board.
6. Updates:
Page 2 of 3
7. Public Hearings:
8. Discussion and Possible Action Regarding:
a) 2012 Audit Presentation and Acceptance
Paul Backes addressed the Board regarding the results of the 2012 audit.
Trustee Naill moved, and Trustee Cwiklin seconded the motion to accept 2012 Audit
Presentation and Acceptance. Motion carried: 6-0
b) Norgren Street Closure for Block Party (May 291h between Eisenhower and Mill)
Mary Zilke has requested the Board allow the closure of Norgren between Eisenhower
and Mill for a block party.
Trustee Waldow moved, and Trustee Cwiklin seconded the motion to approve the
Norgren Street Closure for Block Party (May 291h between Eisenhower and Mill). Motion
carried: 6-0
C) Resolution 2013-05-01 Approving an Easement Agreement for 303 Cozens
Ridge.
PW Nordin recapped the history of the easement request. The easement agreement will
come back to the Board June 121h
Trustee moved, and Trustee seconded the motion to approve the Resolution 2013-05-
01 Approving an Easement Agreement for 303 Cozens Ridge) along with an executed
Deed Restriction Amendment (Ex. B) from Rendezvous, LLC. Motion carried: -0
d) Grand County Historical Association Funding Request
Trustee Naill recused himself due to a conflict of interest. The Grand County Historical
Society briefed the Board on their need for matching funds to meet a grant requirement
for improved signage at the Cozens Ranch Museum.
Trustee Waldow moved, and Trustee Cwiklin seconded the motion to approve the
Grand County Historical Association Funding Request of$1000.00 provided the their
grant application is approved and the Board challenges the Town of Winter Park and
Grand County to also contribute funds. Motion carried: 5-0
e) Proposed Intergovernmental Agreement with the East Grand Fire Protection
District regarding a Proposed Water Main Extension
PW Nordin and Dennis Soles from EGFD briefed the Board on the proposed extension
of the water main to enhance their training facilities. The Town would manage the project
with EGFD reimbursing the Town for project costs plus 5% to cover staff time. Staff will
come back with an agreement for the Board.
Page 3 of 3
f) Ordinance 404 amending Chapter 13 of the Town Code regarding Water and
Sewer Service Line Repairs
This ordinance brings the wastewater section of the Town Code to reflect the same
practices of the water section.
Trustee Naill moved, and Trustee Shapiro seconded the motion to approve Ordinance
404 amending Chapter 13 of the Town Code regarding Water and Sewer Service Line
Repairs. Motion carried: 6-0
g) Ordinance 406 Deleting Chapter 4 Article 4 of the Town Code
TM Durbin outlined the outdated provisions of this part of the code and the need to
eliminate it.
Trustee Shapiro moved, and Trustee Naill seconded the motion to approve Ordinance
406 Deleting Chapter 4 Article 4 of the Town Code. Motion carried: 6-0
9. Community Reports:
10. Other Business:
Trustee Shapiro moved, and Trustee Naill seconded the motion to adjourn. Motion
carried: 6-0. Meeting adjourned at 9: p.m.
Lu Berger, Town Clerk
Iy 1
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AMENDED PETITION FOR ANNEXATION
TO THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO:
The undersigned ("Petitioner"), in accordance with the Municipal Annexation Act
of 1965 as set forth in Article 12, Title 31, Colorado Revised Statutes, as amended and as in
effect on the submission date set forth below (the "Annexation Act"), hereby petitions (this
"Petition")the Board of Trustees of the Town of Fraser, Colorado (the "Board"),to annex to the
Town of Fraser(the "Town") the unincorporated territory located in the County of Grand, State
of Colorado, which property is more particularly described in Exhibit A attached hereto and
incorporated herein by reference (the "Property"). This Amended Petition for Annexation
amends and supersedes the Petition for Annexation of the Property Bled by Petitioner with
the Clerk of the Town on June 11, 2007. The maps submitted with the original Petition for
Annexation have not been amended. In support of this Petition,Petitioner alleges that:
1. It is desirable and necessary that the Property be annexed to the Town.
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2. The requirements of Sections-104 and -105 of the Annexation Act exist or have
been met.
3. Not less than one-sixth (116) of the perimeter of the Property is contiguous with
the Town's current municipal boundaries.
4. A community of interest exists between the Property and the Town.
5, The Property is urban or will be urbanized in the near future.
6. The Property is integrated with or is capable of being integrated with the Town.
7. Petitioner comprises more than fifty percent (50%)of the landowners in the
Property owning more than fifty percent (50%)of the Property, excluding public streets, and
alleys and any land owned by the annexing municipality, and Petitioner hereby consents to the
establishment of the boundaries of the Property as shownn on the annexation plat submitted
herewith.
8. Petitioner comprises the owner of one hundred percent (100%)of the Property
within the meaning of Section 407(1)(g) of the Annexation Act,
9. The Property is not presently a part of any incorporated city, city and county, or
town; nor have any proceedings been commenced for incorporation or annexation of an area that
is part or all of the Property; nor has any election for annexation of the Property or substantially
the same territory to the Town been held within the twelve (12)months immediately preceding
the filing of this Petition.
10. The proposed annexation will not result in detachment of area from any school
district or attachment of same to another school district.
775444.1
11. Except to the extent necessary to avoid dividing parcels within the Property held
in identical ownership, at least fifty percent (50%)of which are within the three (3) mile limit,
the proposed annexation will not extend the municipal boundary of the Town more than three
(3)miles in any direction from any point of the current municipal boundary.
12. The proposed annexation will not result in the denial of reasonable access to any
landowner, owner of an easement, or owner of a franchise adjoining a platted street or alley
which has been annexed by the Town but is not bounded on both sides by the Town.
13. In establishing the boundaries of the Property, no land which is held in identical
ownership, whether consisting of a single tract or parcel of real estate or two or more contiguous
tracts or parcels of real estate:
(a) is being divided into separate parts or parcels without the written consent
of the landowner or landowners thereof unless such tracts or parcels are separated by a
dedicated street, road or other public way; or
(b) comprising twenty (20) acres or more and together with buildings and
improvements situate thereon having a valuation for assessment in excess of$200,000.00
for ad valorem tax purposes for the year next preceding the proposed annexation, is
included in the Property without the written consent of the landowner or landowners.
14. If a portion of a platted street or alley is to be annexed, the entire width thereof is
included within the Property.
15. The legal description of the land owned by Petitioner is set forth underneath the
name of such Petitioner on Exhibit B, attached hereto and incorporated herein by this reference.
As more particularly described on Exhibit B. the land owned by Petitioner constitutes one
hundred percent (100%)of the Property within the meaning of Section-107(1)(g) of the
Annexation Act.
15. The affidavit of the circulator of this Petition certifying that each signature on this
Petition is the signature of the person whose name it purports to be and certifying the accuracy of
the date of such signature is attached hereto as Exhibit C and is incorporated herein by this
reference.
17. This Petition is accompanied by four prints of an annexation map containing,
among other things,the following information:
(a) A written legal description of the boundaries of the Property;
(b) A map showing the boundary of the Property;
(c) Within the annexation boundary map, a showing of the location of each
ownership tract in unplatted land and, if part or all of the area is platted, the boundaries
and the plat numbers of plots or of lots and blocks; and
775094.1 2
(d) Next to the boundary of the Property, a drawing of the contiguous
boundary of the annexing municipality abutting the Property.
18, In connection with the processing of this Petition, Petitioner requests that the
Town:
(a) Institute zoning approval processes for the Property in accordance with
Section-115 of the Annexation Act and Article 13-3 of the Municipal Code of the Town;
and
(b) .Approve and execute an annexation and development agreement (the
"Annexation and Development Agreement") which establishes vested property rights for
the Property for an agreed upon term greater than three years pursuant to Article 68, Title
24, Colorado Revised Statutes, and otherwise establishes the development plan for the
Property.
19. Petitioner has filed this Petition subject to the following condition: Petitioner
hereby reserves the sole, exclusive and unilateral right, without the consent or agreement of any
other landowner within the Property,to withdraw this Petition by so notifying the Town Clerk in
writing at any point prior to the later of: (a)the latest effective date of the final ordinance(s)
approving annexation of the Property, the Annexation and Development Agreement, or zoning of
the Property as requested pursuant to this Petition or (b)any later date contemplated in such
Annexation and Development Agreement.
20. Upon the annexation of the Property becoming effective, and subject to the
conditions set forth in this Petition and to be set forth in the Annexation and Development
Agreement, the Property shall become subject to all ordinances, resolutions, rules and
regulations of the Town, except as otherwise set forth in the Annexation and Development
Agreement, and except for general property taxes of the Town, which shall become effective on
January 1 of the next succeeding year following adoption of the annexation ordinance.
21. This Petition is filed on the condition that, concurrently with its approval of
annexation of the Property, (i)the Board approve zoning of the Property that is substantially
consistent with the application for zoning approvals that Petitioner will submit following the
Town making the required finding of this Petition's substantial compliance with the requirements
of the Annexation Act, and(ii)the Board approve and authorize execution of the Annexation and
Development Agreement.
22, Except for the terms and conditions of this Petition and of the Annexation and
Development Agreement, which terms and conditions Petitioner expressly approves and
therefore do not constitute an imposition of additional terms and conditions within the meaning
of Section-107(1)(g) of the Annexation Act, Petitioner requests that no additional terms and
conditions be imposed upon annexation of the Property to the Town.
THEREFORE, Petitioner requests that the Board of Trustees of the Town. of Fraser,
Colorado, complete and approve the annexation of the Property pursuant to the provisions of the
Municipal Annexation Act of 1965,as amended.
775M.1 3
Respectfully submitted this R boi day of Mov ern her,2007.
Signature of Landowner/Petitioner:
Byers Peak Pro S, LC
By:
C. trai-r-k ff1pscomb,P-Re-sident
Date of Signature: 7
Mailing Address: P.O.Box 30
Winter Park, Colorado 80482
Resident of the Property? YES X NO
775094.1 4
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EXHIBIT A
TO PETITION FOR ANNEXATION
Legal Description of Property
A parcel of land, being Government Lot 3, Government Lot 4 EXCEPT the Westerly 440 feet
thereof, and a portion of the south 1/2 of Section 19, and the N1/2NE1/4 of Section 30, all in
Township 1 South, Range 75 West of the 6th P.M., Grand County, Colorado, more particularly
described as follows:
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BEGINNING at the Southeast Corner of said Section 19 and the Northeast Corner of said
Section 30,a 3" iron pipe with a 3-1/z"'brass cap stamped USGLO 1933;
Thence South 00 034'13" East along the easterly line of said Section 30 a distance of 1,317.29
feet to the North Sixteenth Corner of Section 29 and said Section 30,whence a leaning 2"
iron pipe 1 foot above ground with a 2-1/2" brass-.ap stamped "LS# 12479" bears North
31128'41"East 0.51 feet,also whence the East Quarter Corner of said Section 30, a found
2-%2" brass cap stamped "USGLO 1933" bears South 00 134'13" East a distance of a
1,317.29 feet;
Thence North 89°55'10" West along the North Sixteenth line of said Section 30 a distance of
2,629.96 feet to the North-Center Sixteenth Corner of said Section 30, a set #5 re-bar
with a 3-'/a" aluminum cap stamped "LS #24669", whence the Center Quarter Corner of
said Section 30, a found #6 aluminum rod with a 2-'/2" brass cap stamped "DWD LS
416398,2001"bears South 00°56'13" East a distance of 1,330.77 feet;
Thence North 00°56'13" West along the North-South Centerline of said Section 30 a distance of
1,330.77 feet to the South Quarter Corner of said Section 19, a set #6 re-bar with a 3-1/"
aluminum cap stamped "LS #24669" re-established per monument record sheet ties
prepared by Thomas M. Carpenter,LS# 16398,dated 8/30/1996;
Thence South 89°22'12" West along the southerly line of said Section 19 a distance of 2,181.82
feet to a set#5 re-bar with a plastic cap stamped "LS 24669", whence a 1-1/Z" aluminum
cap stamped "LS# 11415" bears North 52°17'06" East 1.63 feet, also whence the
Southwest Corner of said Section 19 bears South 89°22'12" West a distance of 440.00
feet to a found 2" galvanized pipe with a 2-%2" brass cap stamped "USGLO 1933";
Thence North 00°14'02" West a distance of 1,322.19 feet to a found 1-'/2" aluminum cap stamped
"LS# 11415
Thence North 54°59'49" East a distance of 1,167.79 feet;
Thence North 00°09'11" West a distance of 684.98 feet to the northerly right of way line of CR-
73 as recorded in Book 95,page 184;
Thence North 89 050'49" East along said right of way a distance of 1,296.54 feet to the westerly
Corporate Limit of the Town of Fraser;
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Exhibit A
775094.1
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Thence South 00°14'50" East along said Corporate Limit a distance of 29.94 feet;
Thence North 89 148'07" East along said East-West Centerline of Section 19 a distance of
1,303.12 feet to a set #5 re-bar with a plastic cap stamped "LS 24669" on the westerly
right of way line of the Union Pacific Railroad, whence the East Quarter Corner of said
Section 19,a found 2" pipe in concrete with a 2-1/2" aluminum cap, bears North 89°48'07"
East a distance of 1,266.48 feet;
Thence along said right of way the following three(3) courses:
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1. South 14°40'05" East a distance of 989.32 feet to a point of curvature,a set#S re-
bar with a plastic cap stamped "LS 24669
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2. Along the arc of a curve to the left having a central angle of 59°21'29", a radius of
816.78 feet and an are length of 846.18 feet (chord bears South 44°20'50" East,
808.84 feet), a set#5 re-bar with a plastic cap stamped"LS 24669";
3. South 74°01'34" East a distance of 415.27 feet to a point on the easterly right of
way line of CR-72 as recorded in Book 105,Page 278;
Thence leaving said Union Pacific Railroad right of way South 04°38'38" West and along said
easterly right of way line of CR-72 a distance of 98,01 feet;
Thence North 89°38'52" West leaving said easterly right of way a distance of 40.11 feet to the
westerly right of way line of said CR-72;
Thence North 04°38'38" East along said westerly right of way line a distance of 97.13 feet to a
point of non-tangent curvature on the southerly right of way line of Fraser Valley
Parkway(CR-721) as recorded in Book 450, Page 480;
Thence leaving said westerly right of way and along said southerly right of way and along the
arc of a curve to the right having a central angle of 49°28'57", a radius of 244.97 feet, and
an arc length of 211.56 feet(chord bears South 65 135'58" West, 205.05 feet);
Thence South 00'20'10" West leaving said southerly right of way a distance of 11.01 feet;
Thence North 89°38'52" West a distance of 618.10 feet;
Thence South 00°06'05" East a distance of 900.00 feet to a set #5 re-bar with a plastic cap
3
stamped "LS 24669", whence a found 2-'/2" iron pipe bears North 25°31'29" West a
distance of 5.46 feet;
Thence South 89°37"46" East along the southerly line of said Section 19 a distance of 899.54 feet
i to the POINT OF BEGINNING.
Containing 12,868,892 square feet, or 295.429 acres,more or less.
Exhibit A-2
775094.1
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EXHIBIT B
TO PETITION FOR ANNEXATION
3
Legal Description of Property Owned by Each Petitioner j
Name of Landowner/Petitioner: Byers Weak Properties, LLC
Legal Description of Land Owned by Byers Peak Properties,LLC:
A parcel of land, being Government Lot 3, Government Lot 4 EXCEPT the Westerly 440 feet
thereof, and a portion of the south 1/2 of Section 19, and the N1/2NE1/4 of Section 30, all in
Township 1 South, Range 75 West of the 6th P.M., Grand County, Colorado, more particularly
described as follows:
1
BEGINNING at the Southeast Corner of said Section 19 and the Northeast Corner of said i
Section 30, a 3" iron pipe with a 3-%z"brass cap stamped USGLO 1933;
Thence South 00°34'13" East along the easterly line of said Section 30 a distance of 1,317,29
feet to the North Sixteenth Corner of Section 29 and said Section 30,whence a leaning 2"
iron pipe 1 foot above ground with a 2-1/z" brass cap stamped "LS# 12479" bears North
31°28'41"East 0,51 feet, also whence the East Quarter Corner of said Section 30, a found
2-1/2" brass cap stamped "USGLO 1933" bears South 00°34'13" East a distance of
1,317.29 feet;
Thence North 89°55'10" West along the North Sixteenth line of said Section 30 a distance of
2,629.96 feet to the North-Center Sixteenth Corner of said Section 30, a set #5 re-bar {
with a 3-1/4" aluminum cap stamped "LS #24669", whence the Center Quarter Corner of
said Section 30, a found #6 aluminum rod with a 2-1/Z" brass cap stamped "DWD LS
#16398, 2001" bears South 00°56'13" East a distance of 1,330.77 feet;
Thence North 00°56'13" West along the North-South Centerline of said Section 30 a distance of
1,330.77 feet to the South Quarter Corner of said Section 19, a set#6 re-bar with a 3-1/4"
aluminum cap stamped "LS #24669" re-established per monument record sheet ties
prepared by Thomas M. Carpenter, LS# 16398, dated 8/30/1996;
Thence South 89°22'12" West along the southerly line of said Section 19 a distance of 2,181.82
feet to a set #5 re-bar with a plastic cap stamped "LS 24669", whence a 1-1/Z" aluminum
cap stamped "LS# 11415" bears North 52 117'06" East 1.63 feet, also whence the
Southwest Corner of said Section 19 bears South 89°22'12" West a distance of 440.00
feet to a found 2" galvanized pipe with a 2-'/z" brass cap stamped"USGLO 1933";
Thence North 00°14'02" West a distance of 1,322.19 feet to a found 1-1/z" aluminum cap stamped
"LS# 11415";
Thence North 54°5949" East a distance of 1,167.79 feet;
Exhibit 13
775444.1
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Thence North 00°09'11" West a distance of 684.98 feet to the northerly right of way line of CR-
73 as recorded in Book 95,Page 184;
Thence North 89°50'49" East along said right of way a distance of 1,296.54 feet to the westerly
Corporate Limit of the Town of Fraser; i
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Thence South 00 114'50" East along said Corporate Limit a distance of 29.94 feet;
Thence North 89°48"07" East along said East-West Centerline of Section 19 a distance of
1,303.12 feet to a set #5 re-bar with a plastic cap stamped "LS 24669" on the westerly
right of way line of the Union Pacific Railroad, whence the East Quarter Corner of said
Section 19, a found 2" pipe in concrete with a 2-1/a"aluminum cap,bears North 89°48'07"
East a distance of 1,266.48 feet;
Thence along said right of way the following three (3)courses:
1, South 14 140'05" East a distance of 989.32 feet to a point of curvature, a set 45 re-
bar with a plastic cap stamped."LS 24669";
2. Along the are of a curve to the left having a central angle of 59°21'29", a radius of
816.78 feet and an are length of 846.18 feet (chord bears South 44°20'50" East,
808.84 feet), a set#5 re-bar with a plastic cap stamped"LS 24669
3, South 74°01'34" East a distance of 415.27 feet to a point on the easterly right of
way line of CR-72 as recorded in Book 105, Page 278;
Thence leaving said Union Pacific Railroad right of way South 04°38'38" West and along said j
easterly right of way line of CR-72 a distance of 98.01 feet;
i
Thence North 89°38'52" West leaving said easterly right of way a distance of 40,11 feet to the j
westerly right of way line of said CR 72;
I Thence North 04°38'38" East along said westerly right of way line a distance of 97.13 feet to a j
point of non-tangent curvature on the southerly right of way line of Fraser Valley
Parkway(CR-721) as recorded in Book 450, Page 480;
Thence leaving said westerly right of way and along said southerly right of way and along the
arc of a curve to the right having a central angle of 49°28'57", a radius of 244.97 feet, and
an arc length of 211.56 feet(chord bears South 65 035'58" West, 205.05 feet);
Thence South 00°20'10" West leaving said southerly right of way a distance of 11.01 feet;
Thence North 89°38'52" West a distance of 618.10 feet;
i
Thence South 00 106'05" East a distance of 900.00 feet to a set #5 re-bar with a plastic cap j
stamped "LS 24669", whence a found 2-1/Z" iron pipe bears North 25°31'29" West a
distance of 5.46 feet;
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Exhibit B-2
775004.1
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Thence South 89037'46" East along the southerly line of said Section 19 a distance of 899.54 feet
to the POINT OF BEGINNING.
Containing 12,868,892 square feet,or 295.429 acres,more or less.
Fxhibit B-3
775094.1
EXHIBIT C
TO PETITION FOR ANNEXATION
Affidavit of Circulator
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The undersigned, being of lawfW age, who being first duly sworn upon oath
deposes and says.
That (s)he was the circulator of the foregoing Petition for Annexation of lands to
the Town of Fraser, consisting of 9 pages, excluding the page(s) of this Exhibit C, and that the
signatures of the petitioners thereon were witnessed by the circulator and are the true and
original signatures of the persons whose names they purport to be, and that the dates of such
signatures are correct,
Circular 0 (j
STATE OFCgL Cg.,6 )
) ss.
COUNTY OF GRAND )
The foregoin g AFFIDAVIT OF CIRCULATOR was subscribed and sworn to before me
this,2_C'& day of, ,vefflie, 2007,by
Witness my hand and official seal.
My commission expires:
Notary Public
SUSAN J. KO✓NEKE
NOTARY PUBLIC ,
STATE OF COLORADO
my Commission Expires.02/16/2009.
Exhibit C
775094.1
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C O E O R A D O
MEMO TO: Mayor Smith and the Board of Trustees
FROM: Jeff Durbin, Town Manager
DATE: May 22, 2013
SUBJECT: Summary of Byers Peak Ranch Community Discussions
As you recall, prior to continuation of the Byers Peak Ranch (BPR) Public Hearing on May 1 st
the Town Board directed staff to provide a means for interested residents and property owners
to learn more about the matters before the Board related to BPR. Accordingly, we scheduled a
series of community discussions that were open to the public. This memo is provided to
summarize our efforts and the community discussions.
Sessions were scheduled for May 151h, May 16th, and May 22nd. Each session was attended by
me along with Havens, Trotter, Nordin, and Berger and they all lasted a little over 2 hours.
Additionally, a meeting with a property owner on May 20th became an impromptu discussion that
included three other parties. The sign in sheets for the three scheduled discussions are
attached. Also attached is a list of questions provided by Jane Mather during the sessions.
I should also note that staff has been receptive to other informal conversations with members of
the community and there has been quite a few of these types of conversations (both during
business hours and otherwise).
Generally, these were good discussions and I feel like it was a worthwhile effort. Staff really
appreciates the community engagement, and hopefully we helped provide a little better
understanding.
The first session mostly focused on water matters and rationale behind the PIF
component of the annexation agreement.
The second session focused more on zoning and land use matters, while there was also
discussion regarding water concerns.
The impromptu discussion centered mostly around water matters and concerns.
The final session involved primarily concerns regarding litigation and gravel operations.
Staff especially enjoyed the stories we heard about Fraser from the 1970's.
During each session there was a fair amount of debate about whether or not the Town Board
ought to be entering into the proposed agreement, and/or whether or not the deal brought
enough benefit to the community and offered sufficient protections to the Town. Staff did our
best to avoid debating these matters as those decisions rest with the Town Board.
i own or rraser
PO Box 370, Fraser,CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
We established these discussions as open conversations, with no agenda or formal structure.
Unfortunately, this made it difficult to effectively take notes of all the questions and concerns (we
did a better job with our notes after the first session). We felt that some summary of the
questions may be helpful for the Board.
May 15th
• What is the status of the zoning and land use aspect? Can we still negotiate?
• Explain the negotiations and rationale regarding the on the water taps.
• Have there been conversations with other entities to provide land for augmentation?
May 16th
• How is density calculated and what does zoning provide?
• What is downzoning and/or can we require less density than shown on PDD?
• How much density was asked for in the 2007 annexation agreement?
• Was there much compromise in the negotiations? Can you provide a matrix of all the
changes during the negotiations?
• Height restrictions are only 35 feet everywhere else, why would we allow a 55 foot
variance here?
• PC recommended approval of the PDD with a max height of 45'. Max height asked for
55', where would this be allowed?
• Compare BPR densities to the rest of the town's density.
• What is a PDD? What is a PDD Plan? What is a PDD Ordinance?
• How much water will this development use? Is he bringing that water?
• We need to update PDD to current version on website
• How much negotiation can be done at this point?
• Thinks it should be in Fraser but has trust issue with Clark.
• Do we require a bond for the project? Personal guarantee?
• When do we receive the surety in the process?
• If next development is around the adventure park it would now go through Fraser?
• Same uses as current at the Adventure Park?
• Clarify section 11.4 iii regarding development permits.
• PDD and zoning ordinance discussed, why would the TB make such findings of fact?
• Are the same water rights used to fill Clark's ponds the same water to fill Ike's pond. If
the flows are diminished can he keep water for himself before we get ours?
• Would senior calls restrict the filling of the pond? Is there enough water to fill?
• Has Fraser ever been called upon to release water?
• If we need 60 AF, why was the agreement changed to less now?
• Where will the water come from for the Town and this development at full build out.
• What other water is Clark providing?
• Why does the Town have so much money in reserves when rates are so high?
i own or rraser
PO Box 370, Fraser,CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
• If the development doesn't bring in the water they need for build out, why is this a good
deal?
• How many structures does he want to build at 55'?
• Is the trade off for this pond the only reason we are reimbursing the water taps?
• Why should he get free taps?
• The allocation of costs for future water infrastructure between BPR and old town doesn't
seem fair to us. Seems like the Town could have negotiated a better deal.
May 22nd
• How do you justify the dollars involved over the long run?
• Why not use Rod McGowan?
• Are negotiations done?
• Financial windfalls to them over a matter of time, it's to their advantage.
• Who owns Ponds in Grand Park, who owns other ponds in town? Don't we already have
some ponds we can use?
• We have ample water rights, above and beyond need for this development right?
• So the benefit to "Old Town" is the infrastructure without the rate payers paying for it?
• Afraid the land will be used as a gravel operation until the economy changes to make
residential development feasible. We have plenty of gravel already available in GC.
• Doesn't believe BPR would get a permit from the County for a gravel operation.
• Grand Park gravel piles need to go away.
Town of Fraser
PO Box 370, Fraser,CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
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From: Jane Mather [mailto:jmather(a)criticalcore.com]
Sent: Tuesday, May 14, 2013 12:20 PM
To: Jeff Durbin; Nat Havens; Catherine Trotter; Allen Nordin; Cheri Sanders; Steve Sumrall; Eileen Waldow; Adam
Cwiklin; Philip Naill; Vesta Shapiro; Peggy Smith
Subject: Questions for Town staff regarding BPP annexation
Town Staff and Members of the Town Board of Trustees,
Please see the attached preliminary list of questions which I believe need to be answered before the Town Board of Trustees can
make a decision about the proposed annexation. I will be asking summary versions of these at the upcoming town meetings.
Depending on the answers to these questions, a better agreement than the current proposal possibly could be negotiated. This
belief is based on my training and experience as a professor of real estate and economics at a top five business school(Booth
School of Business at the University of Chicago) and as a practicing real estate professional for major Fortune 100 corporations,
downtown Chicago commercial office tenants, and municipalities.
I am concerned that we have not received this information in response to previous questions. If this is because this information
has not already been collected and evaluated as part of these negotiations,the negotiations to date do not reflect good
negotiating practices from an economic perspective,which could cost the Town millions of dollars. There is a whole field
called"Law and Economics," which was established because most lawyers did not have the training to evaluate the financial
issues in agreements. There are many litigation support firms staffed with economists,in addition to accountants,to provide
evidence in court cases because issues can be economic rather than legal.
If you believe my assistance would be beneficial,I would be willing to work as a consultant to assist in collecting this
information, evaluating it,potentially revising this proposed agreement to reflect answers to these questions, other community
member concerns and questions, and community member vision for Fraser,to the extent that it can be provided given Fraser
zoning and other long-term plans. I have started to collect some of this information to better understand what questions to ask.
As this type of work is my business, and because of the extent of the work that needs to be completed,I cannot do this work on
a volunteer basis. You would not request that a local lawyer provide his or her work for free to this extent nor would you
expect Philip Naill to provide marketing and design services for free, as a few examples.
Please let me know if you would like any assistance. Otherwise, I look forward to answers to these questions.
Sincerely,
Jane
Jane Mather,Ph.D.
CriticalCore
0mathe1 criti cal core.com
PO Box 187, Fraser, CO 80442
o-970.726.9500 1 c-720.201.4487
1
Preliminary, for limited distribution
Questions Regarding Annexation of Byers Peak Properties (BPP) Land
into the Town of Fraser.
Jane Mather
May 14, 2013
From my perspective, any approach to the negotiation of this agreement and an evaluation
of whether the proposed annexation is reasonable and fair needs to reflect answers to at
least the following questions. If this information has not already been collected and
prepared, it should be before the Town Board of Trustees makes any decision with regard
to this annexation.
This perspective is based on my training as a Ph.D. in Economics and my experience as a
past professor of real estate and economics at a top five business school (Booth School of
Business at the University of Chicago) and as a practicing real estate professional working
with major Fortune 100 corporations, downtown Chicago commercial office tenants, and
developers working with municipalities. These questions are organized into these three
sections:
A. What are the next best alternatives for the town to acquire augmentation ponds or
related water-call water rights?
B. What are the characteristics of the next best alternative for BPP to develop this
land?
C. How do these next best alternatives compare to the proposed annexation
agreement?
Many of these questions provide more detailed requests for questions community
members have already asked but for which they have received no or only general answers.
Admittedly, there is a lot of information requested here,but for a development project that
has is likely to have multi-million dollar impact on Town finances,these questions are
warranted. Further the time and cost to acquire this information is likely small compared
to the time and money spent on legal and water fees and is just as important.
These questions reflect public knowledge or other easily obtainable information. Thus
there is no risk to providing answers due to the concern that answers would jeopardize
negotiations as BPP could just as easily find answers as the Town can.
These questions are based on my understanding of how economics and negotiating theory
and practice can be applied to this situation. If there are any misunderstandings, please
provide clarification.
Please note that I am referring to the annexation as Byers Peak Properties because the
owners of the Byers Peak Ranch have asked that the development not be called Byers Peak
Ranch to avoid confusion and because they have been using that name for many years.
2
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
This list is a first version of these questions. As I review this information and other, I may
find additional questions that would warrant consideration.
3
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
Questions
A. Fraser's next best alternatives
1) Fraser water rights. What are Fraser's water rights in terms of
a) Priority date
b) Type (municipal, industrial, agricultural)
c) Whether it has been adjudicated?
d) Amount of water (cubic feet per second (cfs))
e) Amount of storage (acre-feet (af))
f) Consumptive use
g) Type /location
h) Other (share of year?)
i) Whether original Old Town or part of Fraser Blue (Rendezvous / Grand Park
annexation)
2) Water usage. What is current water usage without annexation?
a) What is Fraser's current water usage in terms of how much water is pumped in
acre-feet per year for:
i) Old Town Fraser
ii) Fraser Blue - Rendezvous and Grand Park at current usage
b) What is current water usage (water pumped in acre-feet per year) for nearby
communities, for use in estimating potential water usage at Fraser's full-build out?
3) Augmentation required.
a) How much augmentation storage is needed based on these rights and for Fraser's
current use for Old Town and Fraser Blue separately?
i) Include explanation of water pumped versus consumptive use.
b) What augmentation sources do we currently have for Old Town and Fraser Blue
separately?
c) What happens if we do not have sufficient augmentation sources?
i) Do we loose water rights if we do not create augmentation ponds?
ii) In the past 20 years,what have been the five most senior calls on water and
what has the impact been on Fraser?
4) Future growth. What is current size of Fraser communities (Old Town, Rendezvous
and Grand Park) and at full build-out?
4
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
a) What are the factors to convert the following into single family equivalent units
(SFEs):
i) Are there any differences for residential types or are each an SFE?
ii) Commercial (square-feet) to SFE
iii) Lodging units to SFE
iv) Trailer park to SFE
v) Other to SFE
b) What are current composition and full-build out for Fraser Old Town, Rendezvous
and Grand Park for each of the following
i) Residential units
ii) Commercial square feet
iii) Lodging units
iv) Trailer park sites
v) Other
c) What is forecasted water pumped (acre-feet) and required augmentation storage at
full build out for Old Town and Fraser Blue separately? Please clarify assumptions
and how estimated.
5) Augmentation alternatives and costs
a) What other augmentation sources are available that do not require building new
ponds and what are the costs?
i) Augmentation through down-stream reservoirs such as Wolford Reservoir?
ii) Is it possible to acquire augmentation storage through other reservoir until the
Town has accumulated enough water tap fees in capital account to build own
augmentation ponds?
iii) Augmentation through augmentation ponds used by others?
b) What are the alternatives for new augmentation ponds?
i) What locations have been considered and why are these not feasible as
suggested by the statement that any new ponds would require purchasing land:
(1) On Fraser land along US 40
(2) On private land such as Powers /Jones
(3) Other
c) What is the evidence supporting the cost of$75,000 per acre foot
i) Please provide document describing cost estimate
5
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
ii) As actual examples, what other ponds have been built recently in the Fraser
Valley or similar areas recently,what is the size,what have there costs been, and
what factors in those ponds are different that what would be required for new
Fraser augmentation ponds
(1) Fraser Blue augmentation ponds
(2) Sediment catch pond on south of Winter Park on US 40 -Answer: Estimate
from Kirk Klanke who organized, can be verified by Grand County which
managed.
(a) Size - about 8 acre-feet, surface about 2-3 acres? (in my notes), 4 feet
deep
(b) Cost- $300,000
(c) Specific factors - Lining- large stones, then small stone bottom covered
by concrete; any wetland mitigation?
d) Are there grants available to contribute since adding augmentation ponds rather
than using water from a downstream reservoir will lead to better river health, such
as the grant received for the sediment collection pond south of Winter Park on US
40?
6
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
B. Byers Peak Properties (BPP) next best alternative
1) BPP water rights. What water rights does BPP currently have for use on BPP property
a) Priority date
b) Type (municipal, industrial, agricultural)
c) Whether it has been adjudicated?
d) Amount of water (cfs)
e) Amount of storage (af)
f) Consumptive use
g) Type /location
h) Other (share of year?)
2) Grand County zoning. What construction would be allowed for this land if developed
with the zoning for a Subdivision without any additional provided by a Planned Unit
Development approved by the Grand County Planning Commission and County
Commissioners?
a) How much open space does the County require?
b) What is the density for residential construction and how many units could be
constructed?
c) What zoning would apply to commercial, lodging,trailer parks and any other uses
requested by BPP?
d) What are principles set forth in Grand County master plan for evaluating what
changes should be made to standard subdivision zoning requirements as part of a
planned unit development?
3) Water infrastructure required as part of Grand County. What water infrastructure
would be needed to support development through as part of unincorporated Grand
County for approved development with subdivsion zoning and how much would it cost
based on a reasonable minimum size to serve development.
a) Types of infrastructure
i) Wells
ii) Water treatment facility
iii) Sanitation plant
iv) Augmentation ponds
b) Please provide examples of costs for actual infrastructure projects, such as size, cost
and date constructed for
i) Fraser Blue
7
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
ii) Tabernash Meadows
iii) Other?
8
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
C. Proposed BPP annexation agreement
1) Original BPP agreement proposal. Please post a pdf copy of BPP's original request
and proposal for the annexation,to the extent that these materials are not already
posted on the Town website.
2) Planning principles. What are the principles set forth in Town master plan and other
documents for evaluating annexations?
a) Considerations
i) Open space
ii) Town centers
iii) Other
b) How does the proposed plan compare to the 1976 Fraser Valley Plan and other long-
term plans that Fraser has developed?
3) Past community growth. As insight into how much the Town of Fraser should
"encourage" growth, what impact have past growth and annexations had on Fraser
revenue and expenses:
a) How much growth has there been over the last 20 years for Fraser,Winter Park,
Winter Park Ranch and Tabernash individually for
i) New residential structures (building permits?)
ii) Population
b) What have Fraser revenues and expenses been over this period?
4) Zoning comparison. How does the proposed zoning compare to the size, approved
zoning and actual construction for Old Town Fraser, Rendezvous and Grand Park, and
for BPP if it was approved following Grand County subdivision regulations
a) Total acreage - open plus developable
b) Open space
c) Construction approved
i) Detached residential
ii) Multifamily residential
iii) Commercial
iv) Lodging
v) Other
d) What would SFE / acre be for each of these
5) Water rights conveyed. What water rights are being conveyed to the Town of Fraser
in terms of
9
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
a) Priority date
b) Type (municipal, industrial, agricultural)
c) Whether it has been adjudicated?
d) Amount of water (cfs)
e) Amount of storage (af)
f) Consumptive use
g) Type /location
h) Other (share of year?)
i) How does the continued use of water for irrigation affect consumptive use and
augmentation requirements?
6) Plant investment fees explanations
a) What plant investment fees are required for standard development and are these
the same as in the proposed agreement when payment is required?
i) Water
ii) Sanitation
iii) Any other
b) As an explanation of how PIF fees and metro districts work and as evidence of the
financial impact of this annexation, provide a numerical example for the proposed
annexation with annual revenues and expenses for the next 20 years including
water PIFs, allocation of water PIF fees and proposed cost sharing between the
Town, BPP and any Metro District, related infrastructure construction costs and
other related information.
i) Assumptions
(1) Construction of augmentation ponds starts in three years
(2)Annual residential growth equals the average number of units constructed
per year for the total of Rendezvous and Grand Park since construction on
these developments began through 2012.
(3) Residential construction begins in five years
(4) Other as appropriate
ii) Water PIF reimbursed to BPP and held in separate account
(1) Include amounts in this account in annual financial summary
(2)Are these fees only available for water infrastructure improvements in BPP
annexation or can they be used for other Fraser water infrastructure needs
c) Financial concerns
10
Byers Peak Properties Annexation Questions Preliminary, for limited distribution
i) Does the creation of a Metro District enable BPP, or a future developer, to take
on any responsibilities, such as borrowing money, which might lead to future
commitments by the Town?
ii) What forms of security are provided for in case BPP, or a future developer,
cannot complete the basic infrastructure and leaves the property in a condition
that requires significant Town investment?
d) What Town water infrastructure will be BPP be using that it would otherwise have
to construct if it developed this property as part of the county? In addition to the
first two below, are there others?
i) Wells
ii) Water treatment
iii) Other
e) How are developer investments in roads, pipes and other infrastructure internal to
the development treated in this agreement with regard to costs, Metro District
payments and other related issues? If this is different than the treatment that for
the water and sanitation facilities, explain why?
7) Cost Sharing provisions. Are the cost sharing arrangements in the annexation
agreement described based on the cost sharing concepts in the separate water
document, specified as financial amounts or both?
8) PIF comparison with other developments. How does the treatment of Plant
Investment Fees and other infrastructure related components for BPP annexation
compare to those for Rendezvous and Grand Park with regards to:
a) Share of PIF allocated to Metro District, Sanitation, Town
b) Cost sharing for new infrastructure construction
c) Other
9) Benefits of augmentation ponds to BPP other than augmentation
a) While the cost of the augmentation ponds is paid by the new Metro District, do they
receive appropriate revenue or other adjustments for BPP benefits from the pond?
i) Charges to Colorado Adventure Park for snowmaking is charged at$5 per acre
foot?What is the rate for other water users in the Town?
ii) Why is there no charge for water irrigation use? Are there no costs to the Town
associated with water usage? Does different consumptive use for irrigation
impact the size of the augmentation ponds required?
iii) Assuming gravel extracted from pond construction can be used by BPP or
another entity,will the Town or Metro District receive payment for this gravel?
10)Financial impact on Town. Given that in the past, growth has led to expenses
increasing faster than revenues, what are the potential financial revenue and expense
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Byers Peak Properties Annexation Questions Preliminary, for limited distribution
impacts, in addition to water financials above, on an annual basis with the same growth
assumptions as in A 4) b) above?
a) Please describe all assumptions other than A 4) b).
b) For costs or other assumptions, provide past costs on a per unit basis for?
C)
11) Performance on past agreements. What issues specified in the Grand Park
development agreement, or other developments by members of the BPP LLC,with
either Fraser or Winter Park, have not been followed or have required additional time-
consuming communication between the Town and developer so that the developer
performs according to the agreement?
a) Has the Colorado Adventure Park been operating in accordance with its special use
permit?
b) What recourse does the Town have other than legal suit to address infractions?
Could the agreement include a moratorium on development until the issues are
satisfactorily addressed? (This would require a change in the no rezoning
language.)
12) Fraser's use of Grand Park augmentation ponds.
a) How long, in terms of SFE unit construction and years with the growth assumptions
specified earlier,will the augmentation ponds at Grand Park be able to provide
sufficient water for Old Town Fraser augmentation.
b) I've reviewed the proposed agreement with Grand Park, LLC, and have found
easement specifications, but have not found the specifications for the use of the
Grand Park ponds for augmentation. Where is this language.
13) Gravel, excavation and other construction related issues
a) What provisions are in the agreements to hide on-going gravel sites from town and
county roads and mitigate the challenge of this area looking like a construction zone
over the next 35 years?
b) Does BPP have to follow the same requirements as other gravel operations in the
town or county?
c) Why are all permit and review fees associated with the grading, excavation and
construction of the PPD plan waived? (on page 8 of a previous version) Will there
be no review?
14) Other annexation issues
a) If the Town might have no use for land that BPP might donate,why does BPP have
the option to dedicate land in lieu of School Impact Fees? How will we know that
the land will be valued at a fair price rather than the inflated cost of the land
donated for the recreation center?
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Byers Peak Properties Annexation Questions Preliminary, for limited distribution
b) What are the implications of land being"dedicated" through Special Warranty
Deeds? What assurance do we have that we will not have unwarranted restrictions
such as naming rights for the recreation center?
c) Can a separate agreement with Grand Park be negotiated in conjunction with this
agreement to address other community concerns:
i) Adding trees or a berm to hide gravel Grand Park gravel operations?
ii) Addressing community concerns about excessive signage along US 40?
iii) Changing the name of the recreation center to include Fraser Valley rather than
Grand Park as more than 75% of the cost of the recreation center was borne
Fraser Valley community members (or even more at reasonable land valuation
rates) who still have to pay to access the recreation center and many of who do
not use it.
15) Personal guarantees. Can this agreement require the developers' personal
guarantees as a way to avoid the fact that LLCs can avoid their obligations if they
dissolve, as has happened to other Fraser community members that have had
agreements with LLCs with some of the same members as BPP?
C O L O H A n O
DEVELOPMENT PERMIT
Name of Applicant: Byers Peak Properties LLC
Byers Peak Downhill Properties LLC
P.O. Box 30, Winter Park, CO. 80482
970-726-8600
PROJECT PROPOSAL: Development Permit to permit the operation of an
Outdoor Adventure Park and Recreation Area located in the SE Y4 of
Section 19 and the NE % of Section 30, Township 1 South, Range 75 West
of the 6`" P.M., County of Grand, State of Colorado to be permitted in the
Town of Fraser subsequent to this parcel being annexed into Town with the
following findings and conditions:
FINDINGS:
1. Fraser acknowledges that the Colorado Adventure Park is an existing permitted
use in Grand County granted via a Special Use Permit, permitting the operation
of an outdoor adventure park and recreation area located on a 35 acre parcel
more legally described above.
2. It is the intent of Fraser to annex Byers Peak Ranch into the Town. This 35 acre
parcel described herein, which contains the Colorado Adventure Park, is a part of
the 295 acre ranch proposed to be annexed into Fraser.
3. The proposed project does not propose any prohibited use.
4. Fraser acknowledges that the existing Colorado Adventure Park can continue
operating in the Town of Fraser with the following conditions:
CONDITIONS:
1. This permit is effective upon annexation of this parcel to the Town of Fraser.
2. This development permit does not become effective unless and until the
applicant accepts the preceding findings and following conditions in writing and
transmits the acceptance to the Town of Fraser. The applicant, by his or her
signature, agrees to all conditions specified herein.
3. Uses permitted are as follows:
• Temporary building to be used for ticket sales and warming facility with
restrooms.
• Temporary storage facility for tubes and equipment— no additional
storage facilities shall be allowed beyond the two (2) that are already on
site.
• Construction of a permanent "barn lodge" to be used for concessions,
ticket sales, rentals, retail sales, storage of adventure park equipment.
Prior to construction, site and architectural design must be approved via
an FPDP.
• Horseback riding, mountain biking, ice skating, cross country skiing,
snowshoeing, snow-scoots, tubing, Nordic ski jumps, sledding hill,
concessions, retail sales and equipment rentals, snowmaking, paintball,
terrain park, zip line (under 35' in height), summer slope and associated
uses/activities.
4. Days and hours of operation:
• Monday through Sunday 10:00 A.M. — 10:00 P.M.
• Snow Scoots— Monday through Sunday 10:00 AM —6:00 P.M. (to cease
no later than 6:00 P.M.)
• Snowmaking is not limited to these hours.
5. This Development Permit is issued in order to authorize the current uses as
permitted by the Grand County Special Use Permit. This Development Permit
will be replaced upon approval of an FPDP for the property. Additional uses as
permitted by the PDD may be approved by an FPDP or FPDP amendment.
6. If noise becomes a nuisance to adjoining properties, Fraser reserves the right to
require the Applicant to install sound mitigation, restrict the use to certain hours
or cease use all together. Maximum permissible noise levels shall fall within the
C.R.S. Section 25-12-103 for commercial use:
• 60 decibels from 7:00 A.M. to 7:00 P.M.
• 55 decibels from 7:00 P.M. to 7:00 A.M.
• Sound levels of noise radiating from a property line at a distance of
twenty-five feet or more there from in excess of the decibel established
for the above time periods shall constitute prima facie evidence that such
noise is a public nuisance.
• In the hours between 7:00 A.M and 7:00 P.M., the noise levels permitted
may be increased by ten decibels for a period of not to exceed fifteen
minutes in any one-hour period.
• Unannounced noise monitoring may be conducted by Fraser.
7. The Applicant may be required to contribute their proportionate share to the cost
of magnesium chloride on County Road 721 (aka Fraser Valley Parkway), if
applied, each year as determined by the Director of Public Works.
8. Obstacles used in the paintball field shall be earthen tone. Eco-friendly, filed only
paint balls of muted colors are permitted and must be sold on-site. No off-site
paint balls shall be allowed. Netting shall be removed at the end of each season.
9. If the septic flow reaches 2000 gallons per day or more, a State Permit shall be
obtained and a copy shall be forwarded to the Town of Fraser. Fraser may
request a copy of the flow meter reports annually.
10. The Applicant shall control and mitigate noise, dust, glare and odor on the site
and shall not allow noise, dust, glare or odor to create a nuisance to adjoining
properties.
11. All lighting shall be downward facing and hooded to minimize impacts to
surrounding properties. Existing lighting as approved by Grand County may
exceed maximum height limitations under Town Code, but is grandfathered by
this permit.
12. The Applicant, by accepting this permit, concurs and agrees that Fraser has the
authority to mandate and require a cease and desist of operations for non-
compliance with any permit conditions substantiated by Fraser. The Applicant
irrevocably consents to Fraser's right to enter the property to check for
compliance with permit conditions at any time. If the terms and conditions of the
approval are deemed to be violated, the Town, in addition to criminal and civil
judicial proceedings, may, if appropriate, issue a stop order requiring the
cessation of operations and revoke this permit. Any stop order, revocation order
or other enforcement order by a Town administrative officer or official shall be
subject to appeal to the Fraser Board of Adjustment in accordance with the
provisions of the Fraser Municipal Code.
13. Fraser by the issuance of this Development Permit assumes no responsibility for
the operation of the site, and the Applicant hereby covenants and agrees to hold
the Town of Fraser harmless for any jury or damage which may occur, of
whatever type or nature, as the result of the operation contemplated by this
permit. The Applicant warrants that he will obtain appropriate liability and hazard
insurance to compensate any individual who may be injured or damaged in any
manner by the conduct of this use. The Applicant further warrants and agrees to
compensate Fraser for any expense incurred in the defense of any lawsuit or
other type of action which may be brought against Fraser as a result of said
Applicant's operation of this use.
14. In the event of violation of any of the restrictions or conditions on the use of this
permit, or in the event of the Applicant's failure to fulfill any of the conditions
required by this permit, Fraser shall provide notice to the Applicant at the
following address:
Byers Peak Properties LLC/Byers Peak Downhill Properties LLC
Attn: Clark Lipscomb
P.O. Box 30
Winter Park, CO. 80482
Personal delivery of such notice is an alternate to mailing.
APPLICANT:
Date:
Byers Peak Properties LLC
Byers Peak Downhill Properties LLC.
TOWN OF FRASER:
Catherine E. Trotter: Date:
Town Planner
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TOWN OF FRASER
RESOLUTION NO. 2013-
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A RESOLUTION OF THE FRASER BOARD OF TRUSTEES, APPROVING A DEVELOPMENT
PERMIT TO OPERATE AN OUTDOOR ADVENTURE PARK AND RECREATION AREA IN
THE TOWN OF FRASER SUBSEQUENT TO THIS PARCEL BEING ANNEXED INTO THE
TOWN OF FRASER, COLORADO.
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WHEREAS, Fraser acknowledges that the Colorado Adventure Park is an existing
permitted use in Grand County granted via a Special Use Permit, permitting the operation of an
outdoor adventure park and recreation area located in the SE '/ of Section 19 and the NE % of
Section 30, Township 1 South, Range 75 West of the 6k" P.M., County of Grand, State of
Colorado; and
WHEREAS, it is the intent of the Board of Trustees, to annex Byers Peak Ranch into
Fraser and this 35 acre parcel described herein, which contains the Colorado Adventure Park, is
part of the 295 acre ranch proposed to be annexed into Fraser;
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NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FRASER, COLORADO THAT:
The Fraser Town Board approves the attached Development Permit to operate an outdoor
adventure park and recreation area located in the SE % of Section 19 and the NE % of Section
30, Township 1 South, Range 75 West of the 6t" P.M., County of Grand, State of Colorado.
DULY MOVED, SECONDED, AND ADOPTED THIS 31d DAY OF APRIL, 2013.
TOWN OF FRASER BOARD OF TRUSTEES
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BY:
Peggy Smith, Mayor
ATTEST:
Lu Berger, Town Clerk
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BYERS PEAK RANCH
ANNEXATION AND DEVELOPMENT AGREEMENT
Town of Fraser, Colorado
, 2013
This Agreement creates a Vested Property
Right Pursuant to C.R.S. Section 24-68-103, as amended and
Pursuant to the Terms Hereof
{Client/13236/116/02414663.DOC/161
BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT
TABLE OF CONTENTS
Article 1 ANNEXATION AND ZONING OF THE PROPERTY....................................3
Section1.1 Ordinances........................................................................................3
Section 1.2 Effective Date of Agreement.............................................................3
Section 1.3 Annexation .......................................................................................3
Section1.4 Zoning..............................................................................................3
Section 1.5 Acknowledgements ...........................................................................3
Section 1.6 No Obligation to Develop .................................................................4
Article 2 DEFINITIONS ..............................................................................................4
Section 2.1 Definitions........................................................................................4
Article3 WATER ........................................................................................................6
Section3.1 Water Service ...................................................................................6
Section 3.2 Dedication of Water Storage Facilities ..............................................7
Section 3.3 Water Service Infrastructure and its Approval and Construction ...... 12
Section 3.4 On-site Wells.................................................................................. 13
Section 3.5 Water Plant Investment Fees ........................................................... 14
Section 3.6 Excess Capacity.............................................................................. 14
Section 3.7 Water Plant Investment Fee Accounting and Credit ......................... 14
Article4 SEWER....................................................................................................... 15
Section 4.1 Sewer Service ................................................................................. 16
Section 4.2 Individual Sewage Systems Disposal SyDisposal Systems............................................... 16
Article 5 OTHER UTILITIES..................................................................................... 16
Section 5.1 Other Utilities................................................................................. 16
Article 6 DRAINAGE ................................................................................................ 16
Section6.1 Drainage......................................................................................... 16
Article 7 STREETS AND TRAFFIC........................................................................... 17
Section 7.1 Grading & Roadway Plan................................................................ 17
Section 7.2 Traffic Impact Analysis .................................................................. 17
Section 7.3 Street Designations ......................................................................... 17
Section 7.4 Street Maintenance ......................................................................... 17
Section 7.5 Street Rights of Way....................................................................... 18
Section 7.6 Regional Roadways......................................................................... 18
Section 7.7 Street Standards, Construction, Inspection, and Acceptance............. 19
Section7.8 Pathways ........................................................................................ 19
Article 8 SCHOOL IMPACT FEES, GENERAL MATTERS & SUBDIVISION........... 19
Section 8.1 Additional Municipal Services ........................................................ 19
Section 8.2 Project Open Space......................................................................... 19
Section 8.3 Public Open Space. .........................................................................20
Section 8.4 School Impact Fees.........................................................................20
Section 8.5 Municipal Parcel Dedication ...........................................................20
Section 8.6 Colorado Adventure Park Facilities and Operations .........................20
Article 9 GENERAL DEVELOPMENT OF THE PROPERTY.....................................21
Section 9.1 Development and Control of Development ......................................21
Section9.2 Densities.........................................................................................21
Section 9.3 Transfer of Water and Sewer SFEs ..................................................22
Section 9.4 Fraser Code Standards, Requirements, Rules and Regulations
ofFraser.........................................................................................22
Section 9.5 Grading and Excavation Operations ................................................23
Section 9.6 Transfer of Planning Area...............................................................24
Section 9.7 Phasing Plan...................................................................................24
Section 9.8 Metropolitan District. .....................................................................24
Section 9.9 Financing of Public Improvements ..................................................25
Section 9.10 Maintenance Cost Offsets ...............................................................25
Section 9.11 Hospital/Health Services District. ...................................................25
Section 9.12 Owner's Associations. ....................................................................25
Section 9.13 Rules, Regulations and Official Policies..........................................26
Article 10 COOPERATION & IMPLEMENTATION..................................................26
Section 10.1 Statement of Intent .........................................................................26
Section 10.2 Scope of this Agreement. ................................................................26
Article I I VESTED RIGHTS .....................................................................................27
Section 11.1 Vesting of Certain Property Rights..................................................27
Section 11.2 Rights Which Are Vested................................................................27
Section 11.3 Term for Vested Rights...................................................................28
Section 11.4 Compliance with General Regulations and Limitations on
TownActions .................................................................................28
Article 12 MISCELLANEOUS...................................................................................29
Section 12.1 Time is of the Essence ....................................................................30
Section12.2 Covenants.......................................................................................30
Section 12.3 Contractual Obligations ..................................................................30
Section12.4 Term...............................................................................................30
Section 12.5 Amendment of Agreement...............................................................30
Section 12.6 Default and Remedies .....................................................................30
Section 12.7 No Joint Venture or Partnership ......................................................31
Section 12.8 No Third Party Beneficiaries...........................................................31
Section12.9 Notices ...........................................................................................31
Section 12.10 Assignment.................................................................................32
Section 12.11 Agricultural Use. ........................................................................33
Section 12.12 Grant or Conveyance. Whenever a...............................................33
Section 12.13 Recording ...................................................................................33
Section 12.14 Authorization..............................................................................33
Section 12.15 Governing Law ...........................................................................33
Section 12.16 Severability ................................................................................34
Section 12.17 Waiver of Breach ........................................................................34
Section 12.18 Entire Agreement........................................................................34
Section 12.19 No Additional Annexation Conditions Imposed ...........................34
Section 12.20 Drafting of Agreement ................................................................34
Section 12.21 Execution of Other Documents....................................................34
Section 12.22 Counterparts, Facsimile ..............................................................34
BYERS PEAK RANCH
ANNEXATION AND DEVELOPMENT AGREEMENT
The parties to this Annexation Agreement (this "Agreement") are the TOWN OF
FRASER, COLORADO, a municipal corporation of the State of Colorado ("Fraser"),
and BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company and
BYERS PEAK DOWNHILL ADVENTURES, LLC, a Colorado limited liability
company (collectively "Developer").
RECITALS
A. Fraser is a municipal corporation existing under the laws of the State of
Colorado. Developer is comprised of two limited liability companies organized and
existing under the laws of the State of Colorado;
B. Pursuant to C.R.S. § 31-12-107(1)(a), a petition for annexation
("Annexation Petition"), dated June 11, 2007, amended November 26, 2007, was filed
by Byers Peak Properties, LLC with the Town Clerk of Fraser seeking to annex
approximately 295 acres of unincorporated territory contiguous to Fraser in Grand
County, Colorado, commonly known Byers Peak Ranch (the "Property"), as more
particularly described in the legal description attached hereto and incorporated herein as
Exhibit A, and was referred by the Clerk to Fraser's Board of Trustees (the "Board");
C. By Resolution No. I1-01-07 dated November 28, 2007 the Board found
and determined that the Annexation Petition was in substantial compliance with the
statutory requirements in accordance with the requirements of C.R.S. § 31-12-107, and
set a public hearing.
D. On February 6, 2008, the Board conducted a public hearing at which it
adopted Resolution No. 02-01-08 in which it set forth its findings of fact and its
conclusions on the Annexation Petition in accordance with the requirements of C.R.S.
§31-12-110 and other applicable provisions of the Municipal Annexation Act of 1965,
and deferred action on the annexation of such Property until the terms of an annexation
agreement were negotiated, or until the Board otherwise determined to act upon such
proposed annexation;
E. On February 27, 2012, Byers Peak Downhill Adventures, LLC filed a
Notice and Joinder (the "Joinder") with Fraser to join the Annexation Petition as a
landowner after portions of the Property subject to the Annexation Petition had been
conveyed by Byers Peak Properties, LLC to Byers Peak Downhill Adventures, LLC in
2009;
F. On , the Board conducted a public hearing at which it
adopted Resolution No. in which it set forth its findings of fact and
conclusions on the Annexation Petition with Joinder in accordance with the
requirements of C.R.S. §31-12-110 and other applicable provisions of the Municipal
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Annexation Act of 1965, and adopted Ordinance No. in which it approved
the annexation of the Property to Fraser pursuant to C.R.S. §31-12-111 and other
applicable provisions of the Municipal Annexation Act of 1965.
G. Developer owns 100% of the Property;
H. Fraser and Developer desire to enter into this Agreement setting forth
more fully the terms of the annexation and development of the Property;
I. In connection with the annexation of the Property to Fraser, Developer
filed its application in February 2011 with Fraser for approval of the Byers Peak Ranch
Planned Development District Plan ("PDD Application") for the Property pursuant to
Ordinance No. 131, Series of 1985, set forth in Chapter 16, Article 5 of Fraser
Municipal Code, as adopted and as amended from time to time by Fraser Board of
Trustees ("Fraser Code"), Sections 16-5-10 through Section 16-5-720 (the "PDD
Ordinance"); contemporaneously herewith Fraser approves the Byers Peak Ranch
Planned Development District Plan with conditions (the "PDD Plan"), which allows a
mixture of up to 1,435 dwelling units, 550 hotel/motel/lodging units and 270,000 square
feet of commercial space, recreation facilities, and support activities on the Property, a
copy of which is attached hereto as Exhibit B and incorporated herein by this reference
provided that any amendments thereto may be made without amending this Agreement;
the Property will be served with municipal water and sewer service by Fraser consistent
with the provisions of this Agreement;
J. It is the understanding and intent of Developer and Fraser that the PDD
Plan is preliminary in nature, as provided in the Fraser Code, and the final approval of
the development of the Property, or any portions thereof, is subject to compliance by
Developer with conditions set forth in the PDD Plan, applicable provisions of Fraser
Code and other applicable regulations, rules and policies and this Agreement;
K. For the reasons recited herein, Developer and Fraser have determined that
the PDD Plan is a development for which this Agreement is appropriate;
L. The PDD Plan may contribute substantially to the economic growth of
Fraser and, consequently, may increase tax revenues to Fraser;
M. Fraser desires to annex the Property in order to provide for orderly growth
in and around Fraser;
N. Developer desires to receive the assurance that it may proceed with
development of the Property pursuant to the terms and conditions contained in this
Agreement and in the PDD Plan, consistent with the Fraser Code;
O. Development of the Property in accordance with this Agreement will
provide for orderly growth in accordance with the policies and goals set forth in
Fraser's Master Plan, ensure reasonable certainty, stability and fairness in the land use
planning process, stimulate economic growth, provide water storage to Fraser, and
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foster cooperation between the public and private sectors in the area of land use
planning;
P. Fraser and Developer mutually agree that the provisions hereinafter set
forth are reasonable conditions and requirements in connection with the approval of the
Annexation Petition; Fraser recognizing and reciting that such provisions are necessary
to protect, promote and enhance the public welfare; and
Q. The Board approved the Annexation Petition and annexed the Property to
Fraser under Resolution No. — Series 2013 ("Annexation Resolution") and Ordinance
--- ("Annexation Ordinance").
AGREEMENT
In consideration of the foregoing recitals, Ten Dollars, the mutual promises
contained herein, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
ANNEXATION AND ZONING OF THE PROPERTY
Section 1.1 Ordinances. For purposes of this Agreement, "Ordinances" shall
mean collectively the following: (a) the Annexation Ordinance; (b) an ordinance
approved by Fraser adopting and approving this Agreement; and (c) an ordinance
approved by Fraser adopting and approving the PDD Plan.
Section 1.2 Effective Date of Agreement. This Agreement shall be executed
upon the approval hereof by Fraser and shall become effective as of the 61st day after
the effective date of the approving ordinance as provided in Fraser Code (the "Effective
Date"). If the approving ordinance of this Agreement or the ordinance approving the
annexation are subjected to a legal challenge, Developer may, at its option to be
exercised by written notice to Fraser after consulting with Fraser, declare this
Agreement to be null and void, in which case the annexation of the Property shall be
void and said Property shall be disconnected from Fraser and the PDD Plan shall be
void and of no effect.
Section 1.3 Annexation. Annexation of the Property shall be in accordance with
this Agreement and the Colorado Municipal Annexation Act of 1965, as amended
(C.R.S. §§ 31-12-101, et seq.). As provided herein, the Property shall be subject to all
Fraser ordinances, the Fraser Code, and applicable rules, regulations and policies.
Section 1.4 Zoning. Consistent with the requirements of the Act, Fraser
contemporaneously herewith zones the Property a PD District and is amending the
Official Zoning Map of Fraser accordingly.
Section 1.5 Acknowledgements. The parties acknowledge the following:
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a. Development of the Property pursuant to the PDD Plan is estimated
by Developer to have a 35 year build-out period.
b. A material consideration for Developer's annexation of the
Property and development of the Property consistent with the PDD Plan is Fraser's
agreement to permit development of the Property in accordance with (i) the terms and
conditions of this Agreement and (ii) the conditions of approval of the PDD Plan,
provided that there is subsequent Fraser approval of an FPDP or subdivision within the
PDD Plan pursuant to the Fraser Code.
Section 1.6 No Obligation to Develop. Developer shall have no obligation
under this Agreement to develop all or any portion of the PDD Plan and shall have no
liability under this Agreement to Fraser or any other party for its failure to develop all
or any part of the PDD Plan, unless otherwise expressly set forth in this Agreement.
Nothing in this Agreement shall be construed as a waiver or release by Fraser of its
rights to enforce the Fraser Code as provided herein. Developer shall have no liability
to Fraser or any other party for not developing all or any part of the Property provided
that Fraser and Developer are in full compliance with the terms and conditions of any
subdivision improvements agreement(s) and this Agreement. Notwithstanding the
foregoing and Developer's decision to delay or not develop the Property, Developer and
Fraser agree to perform those specific obligations to be fulfilled that are expressly
required and provided for in this Agreement.
ARTICLE 2
DEFINITIONS
Section 2.1 Definitions. As used in this Agreement, unless specifically stated
otherwise, the words and phrases used shall have the meaning as defined in the Fraser
Code, Zoning Regulations, PDD Ordinance and Fraser Subdivision Regulations. For
the purpose of this Agreement specific words and phrases in this Agreement shall have
the definitions set forth elsewhere in this Agreement and below:
a. Density. References to "Density" in the PDD Plan and Agreement
are to Parcel Density as defined in the PDD Ordinance.
b. Developer. The term "Developer" as defined above shall also
include any person or entity who subsequently acquires a fee simple interest of record
in any portion of the Property as a transferee, grantee, assignee or successor, but only
with respect to the parcel transferred; except that the purchasers of subdivided
residential units, lodging/hotel units, or commercial space in an approved FPDP or
subdivision shall not be deemed to be a Developer for purposes of this Agreement and
the PDD Plan, but shall take their property interests subject to the provisions hereof.
C. Drainage Plan. The Preliminary Drainage Plan prepared by Top
Knot Engineering, Inc., and approved by Fraser as conceptual in nature as set forth in
the PDD Plan.
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d. FPDP. The Final Planned Development Plan of the Property
approved by the Board of Trustees of Fraser in accordance with the requirements of the
PDD Ordinance and Fraser Code.
e. Improvements Agreement. An agreement or agreements required
by the Subdivision and Zoning Regulations of the Fraser Code to provide for the
construction of required improvements pursuant to the requirements set forth in the
Fraser Code.
f. Master Plan. A plan for guiding and controlling the physical
development of land use and circulation in Fraser of Fraser and beyond to a limit of
three miles, as adopted pursuant to Part 2 of Article 23, Title 31, Colorado Revised
Statutes, and any amendment or extension of such a plan. The Master Plan is also
known as the "Comprehensive Plan."
g. Planning Area. An area specifically identified on the PDD Plan.
h. Regional Roadway. This term shall mean the following existing
regional roadways, which are located on the Property: (a) the roadway designated on
the PDD Plan as Fraser Valley Parkway (the "Parkway"); (b) County Road 72 ("CR
72"); and (c) County Road 73, also known as Mill Avenue ("CR 73").
i. Residential Unit. A residential unit is a "dwelling unit" as defined
in the Fraser Code.
j. Grading & Roadway. The Preliminary Grading & Roadway
Plan prepared by Top Knot Engineering, Inc., as approved by Fraser as conceptual in
nature as set forth in the PDD Plan.
k. Sanitary Sewer Investment Fee. A fee collected by Fraser pursuant
to the Fraser Code, Section 13-4-50.
1. Sewer Plan. The Preliminary Sewer Plan prepared by Top Knot
Engineering, Inc., as approved by Fraser as conceptual in nature as set forth in the PDD
Plan.
m. SFE. A "single family equivalent" defined in Section 13-2-10 of
the Fraser Code.
n. Water Facilities. The Water Facilities include the central potable
water supply diversion structures, well pumps and appurtenances, treatment facilities,
transmission lines to storage and treatment, raw water storage facilities, potable water
storage tanks, and distribution lines, related PRV/booster stations connecting the water
source facilities, raw water supplies, and all other physical infrastructure of the Fraser
municipal water supply system that Fraser utilizes to provide water service to Fraser,
together with the Water Rights, augmentation plans, groundwater wells supplying the
central potable water system, raw water diversions and reservoirs including without
limitation the Dedicated Storage. Water Facilities do not include individual service
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lines as defined in the Fraser Code, which facilities shall be owned and maintained by
the property owner on which the service line is located.
o. Water Infrastructure Plan. The Preliminary Water Plan prepared by
Top Knot Engineering, Inc., which describes the water infrastructure serving the
Property, as approved by Fraser as conceptual in nature as set forth in the PDD Plan.
p. Water Plant Investment Fee. A fee collected by Fraser pursuant to
Fraser Code.
q. Water Rights. The water rights decreed by Fraser for its water
supply, including without limitation, the 60 acre feet of storage decreed by Developer
for dedication to Fraser pursuant to this Agreement.
ARTICLE 3
WATER
Section 3.1 Water Service. Upon approval of this Agreement, Fraser will
provide municipal potable water service to the Property for up to 1897 SFEs to serve
the PDD Plan subject to the terms and conditions set forth herein and the applicable
provisions contained in Fraser Code.
Fraser's Water Rights are adequate to support the potable municipal water
service for up to 1897 SFEs on the Property as described in the PDD Plan, subject to the
construction and dedication of the Dedicated Storage to Fraser, the issuance of a decree
from the Water Court confirming the as-built locations of the same, and other terms and
conditions set forth herein. Fraser shall be responsible for all applicable
implementation, operation and accounting requirements necessary to serve the Property
pursuant to the PDD Plan.
a. Infrastructure Connections. The water infrastructure connections to
the existing Fraser municipal system infrastructure to serve the Property may be made
through the infrastructure that serves the "old town" portion of Fraser or the
infrastructure associated with the neighboring project known as the Grand Park project.
The determination of which point of connection will be made will be based upon the
location and phasing of the PDD Plan as set forth in applicable FPDP or subdivision
approvals. The Developer will design and construct all required infrastructure to serve
the Property as required by the Fraser Code and at its sole cost. The provision of water
service is subject to the Developer's obligations to construct or pay for the construction
of the necessary Water Facilities to connect to Fraser's municipal water system and to
serve the PDD Plan or portions thereof as provided for herein, in applicable
Improvements Agreement, and the Fraser Code. Reimbursement or credit to Developer
for the costs of infrastructure constructed pursuant to this Section shall be as described
in Section 3.6 and Section 3.7 below.
b. The Developer agrees to pay Fraser $60,614 for Water Facilities
needs in order to provide water service for the initial 711 SFEs of the total 1897 SFE
approved herein. By this payment, Developer has no further obligation to reimburse
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Fraser for legal fees for water court processes as may be required by Fraser regarding
the Dedicated Water Rights once they are conveyed to Fraser. Such amount shall be
paid upon the Effective Date.
C. The costs for water treatment plant improvements and other
infrastructure, engineering and legal work that will have to be made from time to time
to serve the PDD Plan, or portions thereof, shall be paid through the Water Plant
Investment Fees payable to Fraser. All Water Plant Investment Fees shall be allocated
between the Developer and Fraser as specified in Section 3.7 below.
Section 3.2 Dedication of Water Storage Facilities. In satisfaction of Fraser's
water dedication requirements in connection with the provision of municipal water
service for the PDD Plan, Developer, at its sole cost, agrees to design and construct
water storage facilities (ponds) (the "Dedicated Storage") and the ditches to fill the
Dedicated Storage and to release water therefrom into the Fraser River or its tributaries
upstream of the confluence of St. Louis Creek and the Fraser River to be located on the
Property and/or on adjacent property owned by Cornerstone Winter Park Holdings,
LLC, Grand Park Development LLC or affiliates as provided herein and in accordance
with the decrees for such water rights. If the Dedicated Storage fails in the first year
of operation to properly store the required amount of water for storage and operations
consistent with the decree and the provisions hereof in the opinion of the Fraser after
consultation with Developer and after consideration of normal and accepted seepage for
such storage facilities, Developer shall repair the subject Dedicated Storage the summer
following the first year and may, if appropriate, line the same. Developer shall convey
to Fraser decreed water rights for the filling and storage of 60 acre feet of operational
storage water in the Dedicated Storage (the "Dedicated Water Rights") and shall
dedicate or cause to be dedicated the Dedicated Storage as provided herein. Developer
shall also convey or cause to be conveyed to Fraser the legal rights to fill and store the
Dedicated Water Rights in the Dedicated Storage together with all appropriate
easements for such storage space and the operation, repair, replacement, improvement
and maintenance thereof, the access rights necessary for the diversion and
transportation of water for the filling of such storage and for the release of such stored
water and its delivery to the Fraser River, and the rights of access to all facilities and
infrastructure necessary and convenient for the full utilization of the Dedicated Water
Rights by Fraser as a part of its municipal water system in accordance with the
applicable procedures set forth in the Fraser Code and any applicable augmentation
plan.
The two planned facilities for Dedicated Storage are the Byers Peak Ranch
Augmentation Pond and the Forest Meadows Augmentation Plan Pond. The Dedicated
Storage may be constructed in multiple ponds so long as the aggregate operational
water stored equals 60 acre feet. The Forest Meadows Augmentation Plan Pond will be
constructed to have the capacity to store 25 acre feet of the Dedicated Water Rights. It
will be designed and located by Developer, subject to Fraser's approval, no later than
five years after the Effective Date. The location will be consistent with the decree
entered in Case No. 83CW362. It will be constructed and all associated rights as
provided herein dedicated to Fraser no later than seven years after the Effective Date.
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The Byers Peak Ranch Augmentation Pond will be constructed to have the capacity to
store 35 acre feet of the Dedicated Water Rights. Developer shall design and locate the
Byers Peak Ranch Augmentation Pond, subject to Fraser's approval, no later than 9
years from the Effective Date, and Developer shall construct and dedicate it to Fraser
no later than 1 I years after the Effective Date. The Developer shall comply with all
applicable local, state and federal laws, including obtaining any required permits for
grading and excavation and for construction of the Dedicated Storage. Fraser agrees to
waive the permit fees associated with the grading and excavation permitting for the
Developer in connection with the implementation of the PDD Plan and for construction
of the Dedicated Storage. Fraser is only waiving the permit fees associated with the
above-described permits. Fraser is not waiving any associated surety requirements
other than the surety requirements associated with reclamation where surety has
otherwise been provided to the State of Colorado. Notwithstanding the above, any
construction underway to provide snowmaking for the Colorado Adventure Park and
approved by Grand County in PDD Planning Areas 8 and 9 prior to the Effective Date
shall not require any permits from Fraser if completed prior to the end of 2013. The
Dedicated Storage shall be constructed and operated and all releases of the Dedicated
Water Rights made in compliance with the applicable decrees (or pending decree) in
Case Nos. 83CW362, 05CW287 or IOCW309, which include provisions to address
groundwater that may be intercepted, and applicable augmentation plans. The
Dedicated Water Rights to be used to fill the Byers Peak Ranch Augmentation Pond
shall be the first rights diverted under Case No. IOCW309.
The Dedicated Water Rights shall be conveyed by special warranty deeds and
shall be free and clear of all liens and encumbrances. The easement rights for the
Dedicated Storage and storage of the Dedicated Water Rights shall include without
limitation rights for (a) the diversion and transportation of the same across the Property
for the purposes set forth herein in a location agreed upon by the parties and the filling
and storage of water, (b) the access thereto and to all associated facilities and
infrastructure, (c) the rights for the operation, maintenance, repair, replacement and
improvement thereof, and (d) releases and associated access therefrom to the Fraser
River tributaries. The Developer is required to grant easement rights that will burden
only the Property. Fraser recognizes that Developer is unable to grant or change ditch
easements that may currently exist on adjacent property not owned by Developer and
can only convey the same interest in easement rights it may have in connection with the
water rights to be used for filling the Dedicated Storage. The easement rights shall be
free of liens and encumbrances and shall be executed and delivered into escrow with
Title Company of the Rockies, Inc. — Winter Park Branch by the owners of the
respective properties on which the Dedicated Storage facilities are located to be held in
accordance with instructions to be provided consistent with the provisions of this
Agreement. The grant of easement for the Byers Peak Ranch Augmentation Pond
system is attached hereto as Exhibit C. The grant of easement for the Forest Meadows
Augmentation Plan Pond is attached hereto as Exhibit D.
The water rights decreed in Case No. 05CW287 shall be conveyed to Fraser by
the applicants and owners thereof upon the Effective Date in satisfaction of the
obligation to convey the Dedicated Water Rights associated with the Forest Meadows
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Augmentation Plan Pond. Developer will cause the grant of easement for the Forest
Meadows Augmentation Plan Pond to be executed and delivered to Fraser by the owners
of the Dedicated Water Rights and the property underlying the Dedicated Storage and
associated facilities and all related facilities upon the Effective Date.
The water rights decreed in Case No. l OCW309 to fill and store 35 acre feet of
storage shall be conveyed to Fraser by applicants and the owners thereof within thirty
days of the issuance of a final decree for the same. Developer will cause the special
warranty deed and grant of easement documents for the Byers Peak Ranch
Augmentation Pond to be executed and delivered to Fraser by the owners of such
Dedicated Water Rights and the property underlying such Dedicated Storage and
associated facilities and all related facilities. Such conveyances shall fulfill Fraser's
water dedication requirements for the PDD Plan.
The obligations set forth in this Section 3.2 shall be fulfilled irrespective of
whether Developer chooses not to develop all or portions of the Property under Section
1.7 hereof. Adequate security for the construction of the Dedicated Storage and
associated facilities shall consist of(a) alternative storage that is free and clear of
encumbrances, (b) retention of Water Plant Investment fees, and (c) Fraser's remedies
in the event of a default, as follows:
(a) Alternative Storage: On the Effective Date, Developer will grant
access easements and rights of first use agreements to Fraser for up to 25 acre
feet of water stored in existing ponds at Grand Park ("Grand Park Ponds") and up
to 35 acre feet of water stored in any ponds constructed on the Property. These
easements shall be effective only in the event the above deadlines are not met
and shall only apply to that amount of Dedicated Storage that has not been
constructed and operational. This right of first use shall terminate with respect to
the amount of Dedicated Storage that has been constructed and is operational at
the time it becomes effective. It is anticipated that the Grand Park Ponds shall
be the existing pond commonly known as the "Wishbone Pond," and associated
ponds. A map of the Grand Park Ponds is attached as Exhibit E and the
Easement and First Right of Use Agreement for Ponds and Associated Facilities
and Infrastructure is attached as Exhibit F.
(b) The Water Plant Investment Fees to be reimbursed to Developer as
provided in Section 3.7 shall be held in a separate account as partial security for
the costs to construct the Dedicated Storage or portions thereof that have not
been constructed and conveyed to Fraser as provided herein. It is assumed that
the costs of such construction are $75,000 per acre foot of water to be stored and
the amount of such fees held will not exceed the remaining acre feet of storage
required to be built by Developer and dedicated to Fraser that is not otherwise
secured by storage in the existing ponds times $75,000. To the extent some or
all of the Dedicated Storage is constructed and dedicated as provided herein, the
amounts held in such separate account that exceed the necessary security for the
remaining acre feet of storage to be constructed and dedicated shall be released
to Developer consistent with the provisions of this Section 3.7.
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(c) Fraser's Remedies in Default. To the extent that Developer fails to
provide the Dedicated Storage to Fraser in the time frames provided for herein,
Fraser may also implement its remedies set forth in Section 12.6.v of this
Agreement.
The above security provided for in (a) and (b) shall be released after the first
year of storage and operation of the subject Dedicated Storage, if it is not lined. The
above security provided for in (a) and (b) shall together not exceed the total costs of the
Dedicated Storage to be or remaining to be constructed, based on the estimated costs set
forth in (b). By way of example, if the Forest Meadows Augmentation Plan Pond is
constructed and operational, then the total security shall amount to that required to
construct the Byers Peak Ranch Augmentation Pond.
All operations, maintenance, repairs and replacements, and water court or agency
filings or activities for such ponds shall be Developer's responsibility at its sole cost
until such time as the rights in the Dedicated Storage and the Dedicated Water Rights
are conveyed to Fraser. Upon conveyance of the Dedicated Water Rights, Fraser shall
be responsible for all operations, maintenance, repairs, and replacements, water court or
agency filings or activities of the Dedicated Storage and Dedicated Water Rights stored
therein, unless otherwise agreed upon by the parties in writing. The pond(s) may be
designed to include the storage of additional water rights, and may include storm water
detention capacity or any such other water uses that Developer may require. In such
event, the parties shall be responsible for the costs of all operations, maintenance,
repairs, and replacements, water court and agency filings or activities in proportion to
the amount Developer stores in the subject pond relative to the amount of Dedicated
Water Rights stored therein. With respect to any pond that will constitute all or a
portion of the Dedicated Storage that also will store Developer storage rights, the first
water stored in the same shall be the Dedicated Water Rights and Fraser shall have the
priority of right to use the Dedicated Water Rights over any other water stored in the
Dedicated Storage. Upon the Effective Date, the parties agree to execute the Reservoir
and Ditch Operating Agreement for the Dedicated Storage pond(s) that will provide for
Developer's ongoing use of the Byers Peak Ranch Augmentation Pond for snowmaking
and for irrigation uses on only agricultural lands, open space and/or parks subject to all
prior uses of Fraser of the same and that will address the issues associated with either
pond being larger than the amount of Dedicated Water Rights to be stored therein to
accommodate Developer storage water. The operating agreement shall provide that
Fraser shall have the right to use the Dedicated Water Rights stored in any such
Dedicated Storage ponds with priority over any other water stored in the Dedicated
Storage by and for Developer's use. Developer shall pay Fraser $5.00 an acre foot for
such snowmaking use on an annual basis. Such fee shall increase by $5.00 an acre foot
on each tenth anniversary of the Effective Date of this Agreement. There shall be no
fee charged by Fraser for the Developer's use of the water made available by Fraser
under its Dedicated Water Rights for irrigation. Any irrigation use by Developer shall
be limited to portions of the Property that are agricultural lands, open space and/or
parks. Given that the irrigation use is at the same time as Fraser's uses, the operating
agreement shall provide for a mechanism for the parties to allocate the amount available
for irrigation use on an annual basis. If the Byers Peak Ranch pond system is larger
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than 35 acre feet, then all capacity in excess of 35 operational acre feet shall be retained
solely for use by Developer and no fee is required for Developer's use of such excess
acre feet and the operation of the same will be as provided herein. A copy of the
Reservoir and Ditch Operating Agreement is attached as Exhibit G. The pond
excavation operations for the Property shall be consistent with the recorded PDD maps
and approval, Grading and Excavation Operations Plan provided for herein, and the
provisions of this Agreement.
a. Byers Peak Ranch Augmentation Pond(s). The Byers Peak Ranch
Augmentation Pond(s) shall be designed, located, and constructed by the Developer, as
provided herein for not less than 35 acre feet, on the Property. The water to fill such
pond shall be diverted from St. Louis Creek and shall be capable of being delivered
therefrom by gravity to the pond. The water stored therein shall be capable of being
released to the Fraser River via its tributaries: Elk Creek or St. Louis Creek consistent
with the provisions set forth in Case No. 10CW309, WD 5. The Reservoir and Ditch
Operating Agreement, attached as Exhibit G, provides that Developer may have a right
of use to use the Dedicated Water Rights in the Byers Peak Ranch Augmentation Pond
for snowmaking purposes on an annual basis subject to the first right of Fraser to meet
its needs to use such water for augmentation and other municipal purposes, in Fraser's
sole discretion; Developer shall be responsible for all costs associated with its use of
such portion of the Dedicated Water Rights.
b. Forest Meadows Augmentation Plan Pond(s). The Forest Meadows
Augmentation Plan Pond(s) shall be constructed by Developer, as provided herein and
consistent with the decreed location described in Case No. 83CW362 as approved by
Fraser, on property that is owned by Grand Park Development, LLC and included
within the Grand Park Planned Development District Plan recorded on November 8,
2005 in the real property records of the Clerk and Recorder of Grand County as
Reception No. 2005-012709, as amended from time to time (the "Grand Park PDD
Plan"). The water used to fill such pond(s) shall be diverted and conveyed to such pond
through the Elk Creek No. 2 Ditch and Developer shall make such improvements as
necessary to implement this diversion and conveyance in connection with the
construction of the Forest Meadows Augmentation Plan Pond(s). The water stored
therein shall be capable of being released to the Fraser River as consistent with the
decrees in Case Nos. 83CW362 and 05CW287, WD 5. Upon Developer's conveyance of
the water rights for the 25 acre feet decreed in Case No. 05CW287 to Fraser as provided
herein, Fraser agrees it will be solely responsible for any and all further water court
proceedings and costs related to such water rights, based upon Developer's payment
made pursuant to Section 3.1.2. above. Developer agrees it will not oppose any such
water court proceedings that may be filed related to such water rights. Developer shall
cause Cornerstone Winter Park Holdings, LLC to assist it in fulfilling its obligations
hereunder for the Forest Meadows Augmentation Plan Pond(s). To the extent
Cornerstone Winter Park Holdings, LLC and Grand Park Development, LLC fail to
agree to these requirements as provided herein, the Byers Peak Ranch Augmentation
Pond(s) shall be constructed to an active capacity of 60 acre feet within the time frame
required for the Forest Meadows Augmentation Plan Pond.
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C. Future Water Right Cases. The Developer agrees not to oppose any
water rights application filed by Fraser for the purpose of findings of reasonable
diligence, making absolute or otherwise utilizing the Dedicated Water Rights and/or
utilizing them as a part of its water rights inventory in connection with any plan for
augmentation or other water rights that are a part of its municipal water system. In
addition, Fraser agrees that it will not file opposition to future diligence cases related to
the water rights that serve the Property, including but not limited to Case Nos.
IOCW309. The parties agree to discuss whether it is appropriate to file joint
applications for diligence and for making the conditional Dedicated Water Rights
absolute in the event they both have interests in the same pond(s). The owners of the
Grand Park Pond facilities may also be included as appropriate in the event they have
storage rights decreed to the Forest Meadows Augmentation Pond or any alternative
storage that is provided to Fraser if the Forest Meadows Augmentation Pond is not
constructed and conveyed to Fraser as provided herein.
Section 3.3 Water Service Infrastructure and its Approval and Construction.
The infrastructure necessary to enable Fraser to provide municipal water service to the
PDD Plan as provided herein includes without limitation the infrastructure described in
the Preliminary Water Plan. The Preliminary Water Plan is conceptual and will be
modified from time to time based on Developer's further engineering as approved by
Fraser consistent with the Fraser Code. Within such Preliminary Water Plan, the parties
anticipate construction of the appropriate Water Facilities.
In connection with any application for approval of an FPDP or subdivision for all
or portions of the PDD Plan under the Fraser Code or with the any separate application
for approval for the construction of any Water Facilities or Dedicated Storage, the
applicable provisions of Articles 6 and 7 of the Subdivision Regulations, Article 2 of
Chapter 13 and Article 3 of Chapter 18 of the Fraser Code and other applicable
provisions of the Fraser Code and this Agreement shall apply to the identification,
design, approval, construction, inspection, dedication, acceptance, cetera of the Water
Facilities or Dedicated Storage that are necessary and convenient to enable Fraser to
provide municipal water service to the portions of the PDD Plan that are the subject of
such applications.
Upon review of such applications and the identification of the Water Facilities
submitted by Developer therein, Fraser may determine and require any new Water
Facilities, or improvements or additions to existing Water Facilities, in order to provide
the municipal water service to such portions of the PDD Plan that are the subject of the
applications for approval; provided that Developer shall not be required to construct
any Water Facilities unrelated to the PDD Plan except as provided herein or secure any
water rights other than the Dedicated Water Rights and associated Dedicated Storage
which are to be conveyed and constructed as provided herein. In making such
determination, Fraser will also take into account the integration of the Water Facilities
with its existing and planned facilities. As a condition of such FPDP or subdivision
approval, Developer agrees to construct, at its sole cost and expense, the identified
Water Facilities that are reasonably required to service the property subject to the FPDP
or subdivision and as may be identified in any applicable Improvements Agreement.
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It is important to Fraser to utilize its water rights in St. Louis Creek for their
decreed beneficial uses and Developer agrees to assist in enabling Fraser to be able to
divert and use the same given that the delivery of water under such rights may need to
cross the Property once diverted as further provided in this paragraph. As a part of the
construction of the diversion and transmission facilities from St. Louis Creek to the
Byers Peak Augmentation Pond and of the construction of sewer lines from such pond
site to the east portion of the property as identified on the Sewer Plan or such other
alignment that is cost effective for the installation of the St. Louis Creek transmission
line as determined by Fraser and Developer, Developer agrees to cooperate with Fraser
to include the installation of a raw water transmission line in the trenches for such
facilities in order for Fraser to divert its municipal water rights out of St. Louis Creek
and convey them to the Municipal Parcel described below or its water treatment facility.
Any additional costs incurred by Developer in fulfilling this responsibility will be paid
by Fraser at the time that they are incurred. Until such time that Fraser diverts and
applies its St. Louis Creek water rights to beneficial use, Fraser agrees that, on an
annual basis, Developer may use those portions of its St. Louis Creek water rights not
otherwise committed to other uses or parties for decreed purposes on the Property in
order to keep such lands properly irrigated and to reduce dust within Fraser pending the
development of the PDD Plan as provided herein. Such use is an important municipal
use for Fraser to promote the irrigation of fields within the municipality and adjacent to
the other residential components of Fraser for aesthetic and dust control purposes,
among other municipal purposes. Fraser will notify Developer of the availability of
such water and the parties shall discuss its uses each year, as may be appropriate, on or
before May 1 of each year. Fraser may notify Developer at any time that such water
will no longer be available for use.
Section 3.4 On-site Wells. Section 13-2-20 of Fraser Code provides that on-site
wells are not permitted on the Property except as approved by Fraser. Fraser
acknowledges the Dedicated Storage ponds that are considered to intercept groundwater
will require well permits from the State Engineer. While such ponds are technically
wells if they intercept groundwater and therefore are subject to the provisions of
Section 13-2-20 of the Fraser Code, Fraser hereby determines that such "wells" are not
within the contemplation of such Section, that a franchise under the laws of the State is
not necessary if the ponds are deemed to be "wells," and that the same, if deemed to be
"wells" by the State Engineer, are hereby approved as exceptions to the requirements
of such Section.
Fraser also acknowledges that the Colorado Adventure Park's water supply
currently is provided through a permitted well. The water service for the Adventure
Park shall be provided by Fraser upon the earlier of the following events occurring: (a)
the installation of water service infrastructure in connection with the development of
Planning Area 8 or Planning Area 9; (b) the installation of a municipal water service
line within 200 feet of the well; or (c) upon connection to Fraser's municipal water
system at any time agreed upon by Developer and Fraser. Until such connection is
made as provided herein, the current permitted well is approved as a limited and
temporary water source of supply for the Colorado Adventure Park and a franchise is
not necessary to be obtained under Section 13-2-20 of the Fraser Code for the same. At
13
the time that such water service connection is made, Fraser and Developer agree
Developer may continue the use of such well for equestrian, snowmaking, and other
non-potable uses within the Project as may be appropriate, subject to the final approval
of Fraser. There shall be a presumption that the well will be continued for such
permitted non-potable uses on the Property and any well permits shall be changed as
needed by the Developer, depending upon the ultimate water uses of the same. Under
no circumstances shall the well be used for potable purposes after the Colorado
Adventure Park is connect to Fraser's municipal water system and there shall be no
cross connections. All potable uses of the well shall terminate upon the connection of
the Adventure Park potable system to the Fraser municipal water system.
Section 3.5 Water Plant Investment Fees. Water Plant Investment Fees
associated with the water service to the project shall be due and payable as provided in
Section 13-2-210 of Fraser Code.
Section 3.6 Excess Capacity. Developer is only responsible for costs associated
with Water Facilities that are reasonably required to service the Property. To the extent
the costs of any excess capacity of any Water Facilities constructed by Developer at the
request of Fraser are the subject of reimbursement agreement with other parties using
such excess capacity, Developer shall be entitled to receive all reimbursements received
and/or plant investment fees paid in proportion to the excess capacity utilized, but not
to exceed such proportionate costs. To the extent Water Facilities constructed by
Developer for the Property are utilized to the benefit of other property not within the
PDD Plan, Fraser agrees to reimburse Developer for the proportionate cost of such
Water Facilities in proportion to the use by such other property based on the cost to
Developer of such facilities and limited by the actual reimbursement or plant
investment fees paid to Fraser by the owners of such other property. The payment of
such reimbursable amounts shall be due to Developer quarterly based on the funds
received from other properties beginning with the first quarter after the subject Water
Facilities are accepted by Fraser. To the extent that Fraser requests that the Water
Facilities be constructed with excess capacity that are not the subject of reimbursement
and Fraser, in its discretion, desires to have such excess capacity created, it shall pay
the costs of the same at the time that they are incurred.
Section 3.7 Water Plant Investment Fee Accounting and Credit. Fraser shall
establish a separate water account for Developer and provide a specific accounting for
Developer to track all Water Plant Investment Fees paid in connection with the Property
and all certified costs incurred by Developer in the construction of Water Facilities and
the Dedicated Storage. All reasonable Dedicated Storage construction costs and all
reasonable Water Facilities construction costs incurred by Developer in connection with
the development of an approved FPDP or subdivision shall be documented and certified
by Developer and provided to Fraser for review and approval. The amount of such
approved costs shall be credited to the Developer in Developer's water account. The
amount of any Water Plant Investment Fees prepaid by Developer shall also be
separately credited in the Developer's water account. Any Water Plant Investment Fees
in Developer's water account shall not expire.
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Fraser will collect the Water Plant Investment Fees for residential and
commercial water users within the Property as paid in accordance with the Fraser Code.
The amounts collected shall be accounted for in Developer's water account.
Developer shall be credited in Developer's water account the Water Plant
Investment Fees both prepaid and paid in the amounts paid. Subject to the limitations
set forth herein, Developer shall be reimbursed for construction costs of (a) all Water
Facilities which are reasonably required to service the FPDP or subdivision and (b)
Dedicated Storage. The payment of such reimbursable amounts shall be due to
Developer quarterly based on the fees received beginning with the first quarter after the
Water Facilities are accepted by Fraser and based upon the certified costs of Developer.
Water Plant Investment Fees collected by Fraser for all connections at the Property and
due to Developer hereunder shall be paid by Fraser to West Mountain Metropolitan
District and the Developer's water account shall reflect the same.
The amount of Water Plant Investment Fees to be reimbursed to Developer shall
be as follows:
a. BPR is reimbursed for all water plant investment fees generated by the
BPR project paid from 91 SFE to 9711 SFE;
b. BPR and Fraser split equally the water plant investment fees generated by
the BPR project paid from 9712 SFE to 91,331 SFE;
C. BPR is reimbursed for all water plant investment fees generated by the
BPR project paid from 91,332 SFE to 91,520 to bring to a total of 900 fully reimbursed
SFE fees to BPR;
d. BPR and Fraser split equally the water plant investment fees generated by
the BPR project paid from 91,521 to 91,897.
In the event all of Developer's certified costs are fully paid and no other Water
Facilities and or Dedicated Storage are necessary or planned for completion of the PDD
Plan, Fraser shall thereafter be entitled to retain all Water Plant Investment Fees paid in
connection with the Property. The reimbursement provided for herein shall not exceed
the amount of the certified costs of Developer paid in connection with the construction
of the Water Facilities and Dedicated Storage.
If Fraser hereafter amends its Fraser Code to allocate its Water Plant Investment
Fee between a system development fee and a water resource fee, neither Developer nor
any other owner within the Property shall be obligated to pay a water resource fee
except as otherwise identified by separate agreement between Developer and Fraser.
All other hook-up and service fees customarily charged by Fraser to its water customers
under the Fraser Code may be charged and collected to water customers within the
Property.
ARTICLE 4
SEWER
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Section 4.1 Sewer Service. Upon approval of this Agreement, Fraser will
provide municipal sanitary sewer service to the Property to serve the PDD Plan subject
to the terms and conditions set forth herein and the applicable provisions of the Fraser
Code.
To the extent that Fraser requests that the sewer facilities to be constructed to
serve the PDD Plan be constructed with excess capacity that are not the subject of
reimbursement and Fraser, in its discretion, desires to have such excess capacity
created, it shall pay the costs of the same at the time that they are incurred. To the
extent that another property owner requests that the PDD Plan's sewer facilities be
constructed with excess capacity to serve such other property, such other property
owner shall pay the costs of the same at the time that they are incurred. To the extent
that properties outside of the Property utilize any sewer facilities constructed by
Developer, the users thereof shall reimburse Developer for the costs of such sewer
facilities in proportion to the uses by properties outside the Property and those within.
Section 4.2 Individual Sewage Disposal Systems. Fraser acknowledges and
approves the existing Individual Sewage Disposal System as defined by and regulated
by Colorado law ("ISDS") that serves the Colorado Adventure Park. Such ISDS may
continue in operation until the sooner of the following events occurs: (a) the
installation of sanitary sewer service infrastructure in connection with the development
of Planning Area 10 or Planning Area 11; (b) the installation of a public main within
200 feet of the ISDS; or (c) at such time that the Colorado Adventure Park facilities are
connected to the municipal water system of Fraser. After any one of the above events
occurs, the parties agree that the Colorado Adventure Park shall connect to Fraser's
municipal sanitary sewer system and the ISDS shall be abandoned.
ARTICLE 5
OTHER UTILITIES
Section 5.1 Other Utilities. Developer shall comply with the Subdivision
Regulations, Chapter 13 of Fraser Code, and other applicable provisions of the Fraser
Code regarding the development and extension of utility service to the PDD Plan or
portions thereof, as applicable.
ARTICLE 6
DRAINAGE
Section 6.1 Drainage. Developer has submitted a Preliminary Drainage Plan
prepared by Top Knot Engineering, Inc.. The applicable requirements of the
Subdivision Regulations and of Section 16-5-440(8) of the Zoning Regulations and
other provisions of the Fraser Code pertaining to drainage shall be complied with at the
time of the submission of an application for an FPDP or subdivision for all or portions
of the PDD Plan. As provided in the PDD Plan, a master drainage study for the portion
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of the Property submitted for FPDP will be submitted with each application for an
FPDP.
ARTICLE 7
STREETS AND TRAFFIC
Section 7.1 Grading & Roadway. Developer has submitted a Preliminary
Grading & Roadway Plan, prepared by Top Knot Engineering, Inc., as a part of its
submission of the PDD Plan ("Roadway Plan"), which has been approved by Fraser as
conceptual in nature as set forth in the PDD Plan.
Section 7.2 Traffic Impact Analysis. Developer has provided a Traffic Impact
Analysis dated February 2011 prepared by Felsburg Holt and Uhlevig (the "Traffic
Impact Analysis"), which has been approved by Fraser's traffic consultants and
approved by Fraser Board as a part of the PDD Plan. The Traffic Impact Analysis may
be amended and updated from time to time, including at the time of the filing of an
application for an FPDP or a subdivision, as appropriate, in order to update the same as
the PDD Plan is implemented over time and to reflect material changes in assumptions
(such as the assumption that Fraser Valley Parkway will be completed to the north of
the Property past County Road 73) and results of the same and material changes in
impacts and conditions of traffic on Fraser. Fraser shall review and approve all such
amendments, in its sole discretion, to insure that the traffic impacts of the development
of Fraser and the traffic impacts of the implementation of the PDD Plan are identified
and appropriately addressed. At the time of an application, the Developer shall provide
the engineering and associated information required in Sections 16-5-430(12) and 16-5-
440(11) of the Zoning Regulations and the information required in the Subdivision
Regulations. A memorandum of construction traffic management procedures to address
the ongoing impacts of the construction and phasing in of the PDD Plan shall be
submitted at the time that an application for a grading and excavation permit is
submitted and shall be amended from time as appropriate with the filing of any of the
above referenced applications.
Section 7.3 Street Designations. Streets within the Property shall be constructed
in accordance with Fraser's design and construction standards as provided in the Fraser
Code and shall be public except as otherwise provided herein. Streets solely serving
condominium or townhome projects will be private. There may be other private streets
designated by mutual agreement between Fraser and Developer that would be owned by
an association or by Developer in connection with the approval of an FPDP or a
subdivision.
Section 7.4 Street Maintenance. Public streets shall be maintained, repaired and
replaced by Fraser. Streets and drives not dedicated to Fraser will be maintained,
repaired and replaced by Developer, an applicable association, by Grand County, or by
a metropolitan or other special district with the authority to do the same. All private
streets and drives shall be maintained as required in Section 17-6-10(g) of the Fraser
Code. Fraser shall have no obligation to maintain any non-dedicated streets on the
Property unless otherwise agreed to by the parties. An easement shall be dedicated on
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each final subdivision plat to Fraser over, under, and across all roads not dedicated to
Fraser for access to utility infrastructure and facilities, for emergency services, and for
Fraser employees, agents, representatives to fulfill normal and ordinary Fraser
responsibilities in connection with the construction, inspection, operation, and
maintenance of any and all improvements within the PDD Plan, and for any access that
is determined to be provided to the public in the course of the approval of an FPDP or
subdivision.
Section 7.5 Street Rights of Way. Streets to be dedicated to Fraser as public
rights of way shall be dedicated in accordance with the provisions of the Fraser Code at
the time of a subdivision approval. The right of way for the roadway designated as
Fraser Valley Parkway was previously dedicated to Fraser. The rights of way for CR 72
and CR 73 are owned by Grand County (that portion of CR 73 within Fraser is
commonly known as "Mill Avenue"). The rights of way for these roadways shall be
confirmed on each subdivision plat that includes the same within its boundaries. The
designation of the alignment, location, and widths of all other primary and internal
streets and roadways shall be consistent with the planned, designed, engineered and
approved standards based on anticipated uses of such streets in connection with the
PDD Plan and Fraser traffic needs as identified in the then current Traffic Impact
Analysis and Traffic Impact Study.
Section 7.6 Regional Roadways. The improvement of the Regional Roadways is
the responsibility of Grand County and Fraser based on intergovernmental agreements
and memoranda of agreement or understanding that may exist between them from time
to time. Fraser and Grand County shall work together to establish the level of
improvements desired for the Regional Roadways and the proportional responsibilities
and timing associated with any improvements. Fraser shall reassess the necessity of
such improvements at the time Developer submits its application for FPDP or a
subdivision under the PDD Plan based on the then current Traffic Impact Analysis and
Traffic Impact Study.
Improvement to the Regional Roadways may be required by Fraser and Grand
County or the Fraser Code or applicable regulations as a result of increases in traffic
resulting from regional use or use in connection with the development of the Property.
The design, engineering and construction of any required improvements will be the
responsibility of Fraser and Grand County. The parties agree that Developer shall only
be responsible for costs to improve Regional Roadways based on the percentage of total
trips from the development under the PDD Plan to the total trips on the subject
Regional Roadway. Such percentage of use is anticipated to increase as the
development phases are implemented and shall be considered in connection with the
appropriate improvements and allocation of total trips from the Property. It is
understood that Developer has equipment and will contribute its portion of the
improvements in kind through the use of its equipment to provide the base grading and
excavation that may be necessary for such road improvements.
No later than upon completion of the pond grading and excavation on the
Property, the parties agree Fraser Valley Parkway should be improved by chip and seal,
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at a minimum. Fraser shall provide for the development of the design and engineering
of the improvements of such parkway. Developer, at its cost, agrees it will provide the
initial grading and roadbase construction and materials necessary to enable chip and
seal or paving improvements to be made. A timeline will be developed for Developer's
work once Fraser has secured appropriate funding for the surfacing improvements and
can provide for the same. Additionally, Developer shall work together and cooperate
with Fraser and Grand County to resolve the grade of CR 72 and other concerns at the
intersection of CR 72 and the Fraser Valley Parkway.
Section 7.7 Street Standards, Construction, Inspection, and Acceptance. Except
as otherwise provided in this Agreement, the design, construction, inspection and
acceptance of all public roads shall be consistent with the PDD Plan, approved FPDP or
subdivision, and the road standards set forth in the Fraser Code. Developer shall be
responsible for the costs of the same as provided in the Fraser Code. The primary
access roads serving the Property shall be paved in accordance with applicable Fraser
Code standards. The Developer may request alternate road surface designs on local
roads and within low-density Planning Areas, in accordance with applicable standards
for such surfacing. All private streets shall comply with those standards pertaining to
emergency vehicle access and use as determined by the Fire District and consistent with
Fraser Code requirements, if any. If any private streets are dedicated to the public, they
shall meet all standards applicable to public streets as provided in the Fraser Code.
Section 7.8 Pathways. Fraser and Developer agree that a path shall be designed
and constructed by Developer along the Fraser Valley Parkway through the Property. It
shall be designed in such a manner to have a separated path of sufficient width to
reasonably accommodate bicycles and pedestrians. In the event the path is not
constructed in seven years from the Effective Date, upon the next subdivision filing
under the PDD Plan, the path will be included as a subdivision improvement to be
constructed accordingly. As development progresses, Developer will work with Fraser
in identifying and as appropriate providing access to regional trail pathways or adjacent
public lands.
ARTICLE 8
SCHOOL IMPACT FEES, GENERAL MATTERS & SUBDIVISION
Section 8.1 Additional Municipal Services. After the Effective Date and subject
to the provisions hereof, Fraser agrees to provide the Property such additional
municipal services currently provided within Fraser on terms and conditions by which
such services are so provided, subject to applicable terms and conditions of any
approval of an FPDP or subdivision.
Section 8.2 Project Open Space. Developer has submitted and Fraser has
approved as a part of the PDD Plan a general open space plan consistent with the
requirements of the Fraser Code. Developer agrees to further submit with each
application for an FPDP or subdivision refined and detailed provisions of the open
space plan for the property that is the subject of such application and an updated open
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space plan for the PDD Plan consistent with the requirements of the Subdivision
Regulations and of the Zoning Regulations.
Section 8.3 Public Open Space. During the implementation of that portion of
the PDD Plan that includes development adjacent to the Fraser Valley Parkway from the
old town south and on the east side and after the improvements to the Fraser Valley
Parkway have been made and basic infrastructure installed in either Planning Area 2, 3,
or 8 whichever is first, Developer shall create and develop (sod/grass and irrigation
infrastructure to be installed) a "pocket" park at the south end of the viewplane shown
on the PDD Plan adjacent to the Fraser Valley Parkway for public open space use and
shall dedicate the same to Fraser. Such park shall be 1.5 acres in size, shall, at a
minimum, be in the configuration of a football field. Any other improvements to be
made to the park shall be made by Fraser at its expense. Any such land so dedicated
shall be credited to Developer's park, open space, and other dedication requirements for
the Property, as applicable and consistent with Developer's open space plan, in
accordance with Fraser Code, including without limitation, Section 17-7-370. Fraser
shall be responsible for maintaining the same upon its dedication to Fraser.
Section 8.4 School Impact Fees. At Developer's request and subject to the
provisions of Sections 17-7-340 and 17-7-350 of the Fraser Code, Developer may
dedicate land for public schools or pay a fee in lieu based upon the calculation of
those fees as set forth in Section 17-7-350 of the Subdivision Regulations. Such fees
shall be calculated and due and payable as provided in Section 17-7-350(d) of the
Fraser Code or at such other time as agreed upon by the parties.
Section 8.5 Municipal Parcel Dedication. On the Effective Date, the Developer
agrees to dedicate, or to cause to be dedicated, 6 acres in the PA-1 Planning Area of the
PDD Plan ("Municipal Parcel") to Fraser be used for municipal purposes. The
Municipal Parcel is more specifically described in Exhibit H. The dedication will be
made by special warranty deed free and clear of liens and encumbrances. A title
insurance commitment has been provided to Fraser in connection with the application
for subdivision exemption for the Municipal Parcel to be approved by Fraser as of the
Effective Date. It is understood that as of the Effective Date, only very preliminary
assessment of drainage and other issues has been conducted. The parties agree that they
will discuss and mutually plan as appropriate drainage and associated issues that affect
both PA-1 and the Municipal Parcel as the project develops..
Section 8.6 Colorado Adventure Park Facilities and Operations. The parties
acknowledge the facilities and operations of the Colorado Adventure Park ("Park")
located in Planning Area 8 of the PDD Plan. The Park is an existing business that was
the subject of the public review process in Grand County in connection with the
issuance of a special use permit therefor. The Park has operated in accordance with the
special use permit. The special use permit will terminate upon the Effective Date and
Fraser shall approve by resolution, concurrent with the approval of this Agreement, a
development permit for the continued operation of the Park consistent with the
provisions of the special use permit pending the review and approval of an FPDP that
includes the Park
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ARTICLE 9
GENERAL DEVELOPMENT OF THE PROPERTY
Section 9.1 Development and Control of Development. Developer has the right
to develop the PDD Plan on the Property subject to the terms and conditions of this
Agreement, the land use approvals and the completion of the land use process
consistent with the provisions of Fraser Code. This Agreement and the other provisions
incorporated as a part of the PDD Plan are intended to prescribe a general plan for the
use and development of the Property. Except as expressly provided herein and the other
provisions of the PDD Plan, whenever any action is required to be taken by Developer
hereunder at the time of or in conjunction with FPDP or subdivision review or approval,
and the FPDP and subdivision do not occur concurrently, then the action shall be
required at the time of the first approval for FPDP or subdivision for the subject
property.
Section 9.2 Densities. This Agreement and the approved PDD Plan set forth the
number of Residential Units at a maximum of 1,435 dwelling units (as defined in Fraser
Code), 550 hotel/motel/lodging house units (as defined in Fraser Code and including
without limitation recreational vehicle parking spaces and campsites that are intended
for tourist and visitor use only) and 270,000 square feet of commercial space,
recreational facilities and appropriate support facilities which Fraser agrees is
appropriate for development on the Property subject to the completion of the land use
approval process under Fraser Code. The location of such units, the sizes of the various
building envelopes, and other pertinent land use requirements shall be determined in the
land use approval process as required by Fraser Code and reflected in an approved
FPDP, subject to the provisions of the approved PDD Plan, the Fraser Code, and any
density transfers properly identified in accordance with the Fraser Code. The PDD Plan
is approved concurrently herewith and generally includes without limitation the
following:
a. a property description;
i. land use and development notes referring to matters to be
done relating to open space, accessory dwelling units, density transfer, water supply
and system, wastewater collection, grading and drainage, geologic features,
development standards, sign guidelines, parking and planning area descriptions;
ii. fourteen Planning Areas that are designated areas of land
within the project and identified in the PDD Plan and that include residential use with
detached, attached and stacked Residential Units (Planning Areas 2, 3, 4, 5, 6, 7, 8, 12,
13, 14); a mix of uses of commercial retail, office, industrial, warehousing, residential,
lodging, and institutional uses and municipal purposes and facility uses (Planning Area
1), open space, park, trails and recreational uses (Planning Area 9), lodging, RV,
camping, retail, commercial recreation, restaurant uses (Planning Area 10); detached,
attached, stacked, RV, camping and cabin units (Planning Area 11); and excavation and
grading operations and ponds and gravel operations associated with the pond and
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Project development (Planning Areas 4, 5, 6, 7, 8, 9, 10, 11) and other limited pond
development (Planning Areas 2 and 3);
iii. general site analysis;
iv. land use plan that is a general map showing the Planning
Areas with acres for the same and land use site data chart and two streets;
V. Preliminary Sewer Plan showing conceptual main sewer line
locations and a reference that a master sewer study will be prepared at platting;
vi. Preliminary Water Plan showing conceptual water main
locations and a reference that a master water study will be prepared at platting;
vii. Preliminary Grading and Roadway Plan showing CR72,
CR73 and Fraser Valley Parkway;
viii. Preliminary Drainage Plan showing general flow directions
and outfall points from the Property and proposed water features/detention ponds and a
reference that a master drainage study will be prepared at a later date.
Section 9.3 Transfer of Water and Sewer SFEs. In addition to the rights to
transfer density set forth in Sec. 16-5-630 of the Fraser Code, Developer shall have the
right to transfer water and sewer SFEs from the Property to an adjacent property subject
to the following conditions:
i. The property receiving the transferred SFEs must be within
the boundaries of Fraser.
ii. The transferred water SFEs shall remain subject to the Water
Plant Investment Fee payment structure for the water SFEs set forth in Section 3.6
irrespective of the payment structure for SFEs associated with the receiving property.
The transferred sewer SFEs shall remain subject to the payment structure for the sewer
SFEs set forth in the Fraser Code irrespective of the payment structure for SFEs
associated with the receiving property.
iii. The receiving property shall remain subject to all other
provisions of the Fraser Code.
iv. Any transfer proposed must be approved by Fraser, which
approval shall be based upon confirmation and satisfaction of these conditions.
Section 9.4 Fraser Code Standards, Requirements, Rules and Regulations of
Fraser. Subject to the provisions of Article I 1 hereof, development within the Property
shall conform to the development standards approved as part of the PDD Plan and to the
applicable provisions of Fraser Code. Prior to Fraser considering and approving an
FPDP or subdivision for the Property, Developer shall satisfy all applicable rules and
regulations of Fraser, submit all required plans and information, pay all standard fees,
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and shall satisfy all applicable conditions of approval of the PDD Plan, the
requirements set forth herein, and all applicable requirements of the Fraser Code
consistent with the provisions hereof.
Section 9.5 Grading and Excavation Operations. In connection with any FPDP
or subdivision application or other activity associated with the development of the PDD
Plan, Developer shall obtain a grading and excavation permit in accordance with the
requirements of Article 3 of Chapter 18, Building Regulations, of the Fraser Code. Due
to the extent of the grading and excavation activities anticipated on the Property as a
result of the development of water storage facilities for Fraser and Developer and roads
and other components of the PDD Plan, any permit for the grading, excavation, and
stockpiling on the Property or export of excavated material from the Property shall be
subject to review and approval by Fraser for compliance with the provisions of the
applicable Fraser Grading and Excavation Operations Plan, as it may be amended from
time to time, and, if applicable for commercial sales purposes, the requirements and
conditions set forth in any applicable permit issued for such activities by State of
Colorado Office of Economic Development, Colorado Department of Natural
Resources, Division of Mining Reclamation and Safety ("DMRS").
The Grading and Excavation Operations Plan will be used to regulate grading
and excavation operations for pond excavation for sale of gravel offsite within Fraser in
addition to any DMRS permit that may be required and issued and the provisions
hereof. Prior to commencement of any grading and excavation activities on the
Property, Developer, its lessee or its operator, as appropriate (references to "Developer"
shall include its lessee or operator), shall comply with the following, subject to
Developer remaining responsible for insuring that such compliance occurs:
i. DMRS Permit. Developer shall submit any required DMRS
permit application and permit, if applicable.
ii. Fraser Grading and Excavation Permit. Developer shall
submit an application for and shall obtain a grading and excavation permit from Fraser
in accordance with the requirements of Article 3 of Chapter 18, Building Regulations,
of the Fraser Code. Such application shall include, without limitation, a copy of any
DMRS permit application. A copy of the DMRS permit shall be filed with Fraser when
issued. The grading and excavation permit issued by Fraser shall include a condition
that it is subject to the Grading and Excavation Operations Plan.
iii. Compliance with Laws. Developer shall comply with all
applicable Fraser, state and federal rules, regulations and statutes, including, without
limitation, those enforced by the Colorado Department of Natural Resources, the
Colorado Division of Reclamation, and the Colorado Division of Public Health and
Environment. The Developer will apply for any other required permits and shall provide
such permits to Fraser as a part of its application for or implementation of its grading
and excavation permit.
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iv. Best Management Practices. Best management practices
will be employed with regard to soil erosion, drainage, and other impacts on the site
and mitigation of the impacts shall be included as a part of such practices; a summary
of best management practices will be provided to Fraser with the grading and
excavation permit application.
V. Duration of Operation. Pond grading and excavation
operations shall commence within six months of obtaining any required permit from the
State and a grading and excavation permit from Fraser. Developer agrees that any
permits for pond excavation and any resulting sale of gravel offsite shall be used for not
longer than 10 years per permit, and all permitted gravel and excavation operations that
result in the sale of gravel offsite shall discontinue entirely after the 15 year
anniversary of the issuance of the first grading and excavation permit for pond
excavation and any resulting sale of gravel offsite. It is understood that additional
grading and excavation activities may occur thereafter in connection with the phasing in
of the PDD Plan and not including any resulting sale of gravel offsite. Developer shall
apply for and obtain appropriate grading and excavation permits in accordance with the
Fraser Code for such activities. During periods of inactivity (six months or more),
equipment associated with the grading and excavation operation must be moved off-
site.
Section 9.6 Transfer of Planning Area. Developer shall have the right to create
a separate legal parcel of a Planning Area or portion thereof under the Subdivision
Regulations. In the event the subject parcel satisfies the subdivision exemption criteria
set forth in Section 17-3-10(a) of the Subdivision Regulations, the plat creating the
same shall include a notation that approvals of the plat by Fraser do not indicate an
approval of any access rights, availability of utilities or the ability of the parcel or
parcels to be served by utilities and that such parcel or parcels are subject to the terms
and conditions of this Agreement and the Fraser Code. In the event such parcel or
parcels are transferred to a third party, any proposed changes to the PDD Plan by the
transferee with respect to the transferred parcel or parcels shall require the confirmation
of the Developer that such changes do not affect its property.
Section 9.7 Phasing Plan. Consistent with the requirements of Section 16-5-430
of the Zoning Regulations, a development schedule indicating an approximate date
when construction of the planned development or phases of said development may
begin shall be submitted with each application for an FPDP or subdivision, together
with proposed amendments to the PDD Plan general phasing plan, as appropriate.
Section 9.8 Metropolitan District. Developer has previously organized the West
Mountain Metropolitan District (the "District"). The purpose of the District is to
provide a means of financing various infrastructure improvements or operating
infrastructure within its boundaries but not to compete or conflict with the services and
responsibilities of Fraser. Fraser has received a request from the District to include the
Property within its service area. Contemporaneously herewith and pursuant to the
provisions of C.R.S. Title 32 Article 1, Special District Act, Fraser has approved by
resolution the petition to include the Property in the West Mountain Metropolitan
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District service area under C.R.S. Section 32-1-401 and approved by resolution an
amendment to the service plan consistent with the requirements of C.R.S. Section 32-1-
204.5. It is understood that such service plan amendment includes without limitation
an increase of the debt authorization, subject to District voter approval, to be equal to
the application of a maximum District tax rate of 35 mills for the Property based upon
the financial information provided under C.R.S. Sections 32-1-202(2)(b) and (f) and
32-1-203(3)(d). No more than 35 mills shall be imposed on the Property and this
restriction shall run with the land the District shall include this Property with this
restriction.
Developer shall not be relieved of any of its obligations hereunder or under any
land use approvals granted with regard to the Property. In connection with the approval
of an FPDP or subdivision and the negotiations of a subdivision improvements
agreement, development improvements agreement or Improvements Agreement, Fraser
shall review the financing mechanisms and security proposed by Developer and the
District for the financing of the infrastructure required by such agreement and may
approve the same if consistent with the requirements and intent of the Fraser Code and
this Agreement.
Section 9.9 Financing of Public Improvements. As requested by Developer from
time to time, Fraser, in its discretion, agrees to consider public infrastructure financing
techniques to assist in the costs of improvement that are of a regional nature.
Section 9.10 Maintenance Cost Offsets. Developer and Fraser recognize and
agree that the development contemplated by the PDD Plan may entail significant
increased road maintenance and capital expenditures to be the responsibility of Fraser.
Fraser may, as a condition of approval of any FPDP or subdivision require that the
applicable Improvements Agreement provide for the Developer to provide a means of
road maintenance necessary to serve the FPDP or subdivision or utilize other means of
addressing the maintenance needs for such roadways other than the Regional Roadways,
for a reasonable period of time not to exceed two (2) years.
Section 9.11 Hospital/Health Services District. Developer may wish to form a
Hospital/Health Services District and currently intends to include the Property within
its service area. Fraser agrees to review any service plan prepared for such a special
district at the time that it is submitted to Fraser for review and approval in connection
with the inclusion of the Property within the district. A condition of approval of the
creation of such a district is that the district and Fraser enter into an intergovernmental
agreement that restricts the district from entering into any other contracts or assessing
any property or sales taxes without subsequent Fraser approval. The district's service
plan shall also contain such a restriction.
Section 9.12 Owner's Associations. Developer reserves the right to impose
covenants upon any portion of the Property and to form one or more owner's
associations for all or any portions of the Property which shall assume responsibilities
for collecting common expenses and enforcing restrictive covenants. All such
covenants and declarations must be provided as required by the Fraser Code.
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Section 9.13 Rules, Regulations and Official Policies.
i. Fees, Conditions and Dedications. Developer shall make
only those dedications and pay only those fees expressly described in this Agreement
and the PDD Plan and those otherwise set forth in the Fraser Code, including without
limitation the reimbursement of Fraser's expenses incurred in connection with Fraser's
review of this Agreement and of any zoning and subdivision applications filed by
Developer. Notwithstanding the foregoing, Developer, as appropriate and consistent
with the provisions hereof, will be subject to such other normal fees, such as service
fees, that all developers and citizens are required to pay for municipal services.
ii. Land Use Approvals. Developer agrees to fulfill the
provisions, terms and conditions of the PDD Plan as provided therein and as
conditioned by Fraser.
ARTICLE 10
COOPERATION & IMPLEMENTATION
Section 10.1 Statement of Intent. It is the express intent of Developer and
Fraser to cooperate, and work diligently to implement any approved preliminary
subdivision plats and final subdivision plats, FPDP and/or other land use approvals,
building permits or approvals in compliance with this Agreement and Fraser Code and
in substantial conformance with the PDD Plan as such may be amended from time to
time.
Section 10.2 Scope of Agreement.
i. This Agreement is intended to set forth the parties'
understanding and agreements regarding the annexation of the Property pursuant to the
Municipal Annexation Act of 1965, as amended, the procedures, limitations and
standards applicable to the construction of future improvements that may be installed to
serve the Property, the responsibilities of the parties for various costs, fees and charges,
and such other matters the parties believe can be addressed at this time.
ii. Except as otherwise provided in this Agreement, this
Agreement is not intended to address those additional matters which are properly
considered at the time Developer submits to Fraser for its review and approval an
FPDP, subdivision applications for each development phase of the Property, or both.
Contemporaneously herewith, Fraser has approved the PDD Plan. Except as otherwise
set forth in this Agreement, Fraser reserves all rights to review, approve or deny any
future zoning application, FPDP application, or future subdivision application on any
portion of the Property, in accordance with state law and applicable provisions of the
Fraser Code, ordinances, rules, regulations, standards, and policies.
iii. It is not the intention of the parties in any way to diminish or
limit Fraser's legislative, judicial, quasi-judicial or other non-delegable discretionary
powers except as to the matters specifically set forth in this Agreement. Except as
otherwise provided in this Agreement, it is not the intention of the parties to impose on
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Fraser any duty, beyond the Fraser Code and regulations as they may from time to time
exist, nor to impose any special obligation on Fraser to approve or accept any items
submitted by Developer or its successors and assigns including, but not limited to,
plans, drawings, engineering, reports, security documents, improvements, agreements,
and conveyances.
ARTICLE 11
VESTED RIGHTS
Section 11.1 Vesting of Certain Property Rights. The parties hereby agree
i. that this Agreement shall constitute a development
agreement as defined in C.R.S. 24-68-104(2) and shall constitute a site specific
development plan under C.R.S. 24-68-102(4)(a);
ii. that certain rights under this Agreement shall be vested
property rights to the extent permitted by Colorado law as provided in this Agreement;
and
iii. because the development of the Property under this
Agreement is sizable and requires phasing over 35 years according to the Developer and
because of evolving market conditions, a vested property right is hereby established
with respect to the Property in connection with the approval of this Agreement to
undertake and complete development and use of the Property under the terms and
conditions of this Agreement.
Section 11.2 Rights Which Are Vested. Having provided notice and conducted
a hearing in accordance with the requirements of C.R.S. Sec. 24-68-103(b), only the
specific rights which are identified herein and in the PDD Plan attached hereto shall
constitute the vested property rights established under this Agreement for the Property.
Subject to the terms and conditions set forth in this Agreement and in the approval of
the PDD Plan, these rights include the following:
a. No Downzoning. Fraser shall not initiate any zoning action to
reduce the maximum number and location of residential dwelling units, lodging units or
allowable commercial space, to limit the free market nature of the various properties or
interests therein offered, to impose any affordable housing fees or housing
requirements, to limit sales, or to change or limit the permitted commercial activities as
set forth in the PDD Plan.
b. Residential Dwelling Units, Lodging and Acreage. The right to
develop up to the total number and type of residential dwelling and hotel/motel/lodging
units set forth on the PDD Plan and the right to utilize substantially the total gross acres
for residential and hotel/motel/lodging use as set forth herein and in the PDD Plan.
C. Commercial Acres and Density. The right to utilize substantially
the total gross acres for commercial use as set forth on the PDD Plan and the right to
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develop up to the gross floor area for commercial use as set forth herein and in the PDD
Plan.
d. Land Uses. The right to develop land and engage in land uses in
the manner and to the extent set forth in the PDD Plan.
e. Timing and Development. In recognition of the size of the
development contemplated under the PDD Plan, the time required to complete
development, the need for development to proceed in phases, and the possible impact of
economic conditions and economic cycles and varying market conditions during the
course of development, the right to develop the Property in such order and at such time
as the market dictates within the structure of this Agreement and the PDD Plan.
f. Moratoria. Fraser will not impose a moratorium except Fraser may
impose a temporary moratorium if, (i) the moratorium is non-discriminatory, (ii) the
moratorium is based upon a set of circumstances or a situation that has created a serious
and documented issue that threatens public health and safety and (iii) the moratorium is
only so long as required to correct or remedy the situation. In no other event shall any
type of general growth moratorium, product type, or building permit limitation of any
kind enacted in any manner by Fraser be applicable to the Property.
Section 11.3 Term for Vested Rights. In recognition of the size of the
development contemplated under the PDD Plan, the time required to undertake and
complete development, the need for development to proceed in phases, and the possible
impact of economic cycles and varying market conditions during the course of
development, Fraser agrees that the rights identified in Section 11.1 and Section 11.2
of this Agreement, as vested property rights, shall continue and have a duration of
thirty-five (35) years beginning on the Effective Date. In the event the Developer or its
successor(s) in interest does any of the following, the vested rights created herein shall
terminate:
I. filing of voluntary petition in bankruptcy or for reorganization or for the
adoption of an arrangement under the Bankruptcy Code (as it may be amended from
time to time) or an admission of seeking the relief therein provided;
2. making a general assignment for the benefit of its creditors;
3. consenting to the appointment of a receiver for all or a substantial portion
of the Property;
4. in the case of the filing of an involuntary petition in bankruptcy, the
failure to have such petition stayed or dismissed within 60 days of filing;
5. the entry of a court order appointing a receiver or trustee for all or a
substantial part of the Property; or
6. the assumption of custody or sequestration a court of competent
jurisdiction of all or substantially all of the Property.
Section 11.4 Compliance with General Regulations and Limitations on Town
Actions. Fraser shall not take any zoning, subdivision or other land use action that
would alter, impair, prevent, diminish, impose a moratorium on development, or
28
otherwise delay development or use of the Property in accordance with this Agreement.
Except as otherwise provided herein, the Fraser Code, ordinances, policies, procedures,
regulations, standards, and requirements in effect as of the Effective Date shall be
applicable to the use and development of the Property.
i. The establishment of the rights vested under this Agreement
shall not preclude the application of Fraser ordinances, regulations. standards, or
requirements which are general in nature and applicable to all properties within Fraser
including, but not limited to, public works and sign regulations, impact fees, rate, toll,
charge, tax, service fees, user fees, local improvement districts rules and regulations,
building permit application requirements, building, fire, plumbing, engineering,
electrical and mechanical codes, as such exist on the Effective Date or may be enacted
or amended after the Effective Date.
ii. In addition, the provisions of the Fraser Code, ordinances,
policies, procedures, regulations, standards, and requirements may be amended from
time to time and will be applicable to the development of the Property as provided
herein if such amendments (i) are consented to by Developer or (ii) are general in
nature and applicable to all properties in Fraser and do not have the effect of denying,
altering, impairing, preventing, diminishing, imposing a moratorium on development, or
otherwise delaying development or use of the Property in accordance with the PDD
Plan and this Agreement.
iii. It is understood that Fraser will apply the current business
district standards to any applicable development within the PDD Plan either by way of
reference to such standards or by amendment to the PD District zoning regulations. In
applying the same, Fraser shall not impose a duplicative process on Developer.
The parties understand and agree that the Business District development
standards shall be applicable to all mixed use, accommodation, lodging and commercial
zoned planning areas in the PDD Plan and shall be incorporated into the FPDP for such
areas. Accordingly, the review procedures of the Fraser Code for the PD District shall
apply to the approval of any FPDP or subdivision plats for the Property.
Within 14 days after Fraser has approved the ordinance approving this
Agreement and in accordance with C.R.S. Sec. 24-68-103(l)(c), Fraser shall cause to be
published a notice in a newspaper of general circulation advising the general public of
the site specific development plan approval and creation of a vested property right
pursuant C.R.S. Sec. 24-68-101 through 106.
Nothing contained in this Agreement shall constitute or be interpreted as a repeal
of existing codes or ordinances or as a waiver or abnegation of Fraser's legislative,
governmental or police powers to promote and protect the health, safety, or general
welfare of Fraser or its inhabitants.
ARTICLE 12
MISCELLANEOUS
29
Section 12.1 Time is of the Essence. Time is of the essence with respect to the
performance of each party's obligations hereunder. However, neither party shall be
liable for delays or failures to perform due to acts of God, strikes, civil commotions,
epidemics, quarantines, freight embargoes, or other cause of similar nature not
reasonably within such party's control
Section 12.2 Covenants. The provisions of this Agreement shall constitute
covenants and servitudes which shall burden and run with the land comprising the
Property and the burdens and benefits hereof shall bind and inure to the benefit of all
estates and interests in the Property and all assigns and successors in interest to the
parties hereto.
Section 12.3 Contractual Obligations. Fraser and Developer agree that the
agreements contained herein, are imposed by contract as terms and conditions of
Fraser's annexation of the Property, independent of the continued validity or invalidity
of any of the provisions of Fraser Code. Each of the Developer entities agrees to be
jointly and severally obligated under this Agreement to fulfill the responsibilities,
obligations and provisions agreed upon by Developer, including without limitation
those provisions relating to default and the remedies and cures associated with the
same. Notwithstanding the foregoing, Fraser shall have the right to look to only one
Developer entity for compliance herewith, as appropriate, and to seek remedies in the
event of a default against only one of the Developer entities and shall not be obligated
to include both in any effort, proceeding or action to secure the same.
Section 12.4 Term. The term of this Agreement shall commence upon the
Effective Date and shall extend in perpetuity. .
Section 12.5 Amendment of Agreement. Except as otherwise provided herein,
this Agreement may be amended from time to time or revoked only by mutual
agreement of the parties in writing following the applicable public notice and public
hearing procedures required in the Fraser Code for approval of this Agreement by
Fraser. Neither any amendment of the PDD Plan nor any approval of an FPDP,
subdivision or resubdivision of the Property (or any part thereof) shall require an
amendment to this Agreement.
Section 12.6 Default and Remedies.
i. Default by Fraser. A "breach" or "default" by Fraser under
this Agreement shall be defined as (a) pursuant to Section 24-68-105, C.R.S., in effect
as of the Effective Date, any zoning or land use action by Fraser or pursuant to an
initiated measure that alters, impairs, prevents, diminishes, imposes a moratorium on
development, or otherwise delays the development or use of the Property as set forth in
the PDD Plan, subject to the exceptions set forth in said statute, or (b) Fraser's failure
to fulfill or perform any material obligation of Fraser contained in this Agreement.
30
ii. Default by Developer. A "breach" or "default" by
Developer shall be defined as Developer's failure to fulfill or perform any obligation of
Developer contained in this Agreement.
iii. Notice of Default and Opportunity to Cure. In the event of
default by one party in the performance of its obligations under this Agreement, written
notice of such default shall be given to the defaulting party by the non-defaulting party.
If the default is a failure to pay any amount of money due pursuant to the terms of this
Agreement or to post a letter of credit as provided herein, then such default shall be
cured within 10 days after notice of default is given to the defaulting party. If such
default constitutes a breach or violation of any term or provision of this Agreement
other than the payment of a monetary amount or the posting of a letter of credit, the
defaulting party shall have 15 days within which to institute corrective action and shall
proceed diligently thereafter to cure the default within no more than 90 days from the
date of the notice of default.
iv. Remedies - Default by Fraser. In the event of a default by
Fraser that is not timely cured as provided herein, the Developer shall be entitled to
specific performance and mandatory prohibitory injunction and the remedies set forth in
C.R.S. Sec. 24-68-105, except Fraser shall not be liable for any compensation, if such
default pertains to the vested rights established herein.
V. Remedies - Default by Developer. In the event of a default
by Developer that is not timely cured as provided herein, Fraser shall be entitled to
specific performance, and mandatory prohibitory injunction. Fraser shall also have the
right to (a) stop the processing of any application of any type or nature filed or pending
before it with regard to the Property, (b) not approve any permit, application, or other
required authorization associated with the development of the Property, and (c) pursue
any remedies set forth in applicable development or subdivision improvement
agreements as provided therein.
Section 12.7 No Joint Venture or Partnership. Fraser and Developer hereby
agree that nothing contained herein or in any document executed in connection herewith
shall be construed as making Fraser and Developer part of a joint venture or partners.
Section 12.8 No Third Party Beneficiaries. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon, or to give to, any legal
person other than the Parties, any right, remedy, or claim under or by reason of this
Agreement or any covenants, terms, conditions or provisions hereof, and all of the
covenants, terms, conditions and provisions in this Agreement by and on behalf of the
Parties shall be for the sole and exclusive benefit of the Parties. Nothing in this
Agreement is intended to interfere with the agreements of the Parties with third parties
Section 12.9 Notices. Any notice or communication required hereunder between
Fraser and Developer must be in writing, and may be given either personally, overnight
by UPS or FedEx, or by registered or certified mail, return receipt requested. If given
by registered or certified mail, the same shall be deemed to have been given and
31
received on the first to occur of(i) actual receipt by any of the addressees designated
below as the party to whom notices are to be sent, or (ii) five (5) days after a registered
or certified letter containing such notice, properly addressed, with postage prepaid, is
deposited in the United States mail. If personally or overnight delivered, a notice shall
be deemed to have been given when delivered to the party to whom it is addressed.
Any party hereto may at any time, by giving written notice to the other party hereto as
provided herein, designate any other address in substitution of the address to which
such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
If to Fraser: Town of Fraser
153 Fraser Avenue
P.O. Box 370
Fraser, CO 80442
Attention: Manager
with a copy to: Rodney R. McGowan, Esq.
Cazier, McGowan & Walker
P.O. Box 500
Granby, CO 80446
Arthur B. Ferguson, Jr., Esq.
Kylie J. Crandall, Esq.
Holland & Hart LLP
600 East Main Street, Ste 104
Aspen, CO 81611
If to Developer: Byers Peak Properties, LLC
Byers Peak Downhill Adventures,
LLC
P.O. Box 30
Winter Park, CO 80482
Attention: C. Clark Lipscomb
with a copy to: Lee F. Sachnoff, Esq
Krendl Krendl Sachnoff& Way, P.C.
370 Seventeenth Street, Suite 5350
Denver, CO 80202
And
Ramsey L. Kropf, Esq.
Patrick, Miller, Kropf& Noto, P.C.
229 Midland Avenue
Basalt, CO 81621
Section 12.10 Assignment. This Agreement shall be binding upon and inure to
the benefit of the successors in interest, assigns, transferees or the legal representatives
32
of the parties hereto. Developer shall have the right to assign or transfer any portion of
its interests, rights or obligations under this Agreement to third parties acquiring an
interest or estate in the Property, including but not limited to purchasers or long-term
ground lessees of individual lots, parcels, or of any improvements now or hereafter
located within the Property. In connection with any such assignment, the express
assumption of any of Developer's obligations under this Agreement and the PDD Plan
personally by its assignee or transferee may thereby relieve Developer of any further
obligations under this Agreement with respect to the matter so assumed, provided that
such assignee or transferee shall have sufficient financial capability and resources to
fulfill such obligations as determined by Fraser and confirmed by the Developer. In
such event, Fraser agrees to execute a written release of such obligations upon receipt
of a written confirmation to undertake such obligations by the assignee thereof. Any
approved assignment shall not be effective on Fraser for the transfer of the rights of
Developer to such assignee until written notice of the same is delivered to Fraser
executed by both the assignor and assignee.
Section 12.11 Agricultural Use. The Property is currently being used in part for
agricultural, farm and ranch purposes. Normal non-building agricultural activities
historically associated with the use of the land, including, but not limited to plowing,
tilling, irrigating, planting, haying and grazing, shall be exempt from Fraser permitting
requirements to the extent any may be applicable. Developer may continue such uses
during the phasing of the development notwithstanding the zoning of the Property under
the PDD Plan.
Section 12.12 Grant or Conveyance. Whenever a grant, dedication or
conveyance is required in this Agreement free and clear of encumbrances and liens,
Developer may make such conveyance subject to encumbrances or liens that Developer
is contesting in good faith provided that adequate assurances acceptable to Fraser are
given to provide that the lien or encumbrance will be satisfied and released in the event
Developer is not ultimately successful in its contest of the lien or encumbrance. Fraser
in its sole discretion shall determine whether such assurances are acceptable and
accordingly whether the grant, dedication or conveyance will be accepted by Fraser.
Section 12.13 Recording. This Agreement shall be recorded with the Clerk and
Recorder in Grand County, Colorado.
Section 12.14 Authorization. The signatories to this Agreement affirm that they
are fully authorized to enter into and execute this Agreement, and all necessary actions,
notices, meetings and/or hearings pursuant to any law required to authorize their
execution of this Agreement have been made.
Section 12.15 Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Colorado. Venue for any judicial action
filed in connection with this Agreement shall be in the District Court in and for Grand
County, Colorado.
33
Section 12.16 Severability. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement shall continue in full force
and effect so long as enforcement of the remaining provisions would not be inequitable
to the party against whom they are being enforced under the facts and circumstances
then pertaining and the parties shall use good faith efforts to modify such term,
provision, covenant or condition to the minimum extent necessary to be enforceable.
Section 12.17 Waiver of Breach. The waiver by any party to this Agreement of
a breach of any term or provision of this Agreement shall not operate or be construed as
a waiver of any other term or provision or of any subsequent breach by any party.
Section 12.18 Entire Agreement. This Agreement represents the entire
agreement between the parties and incorporates or supersedes any previous oral,
written, or collateral agreements, communications, representations or understandings
between the parties with respect to the matters set forth in this Agreement excepting
those agreements pertaining to the funding of Fraser's cost of review of this Agreement
and the PDD Plan. Except as otherwise provided herein, this Agreement does not
abrogate or modify any existing improvements agreement, subdivision improvements
agreement, development improvements agreement, or other annexation agreement
among the parties pertaining to properties other than the Property. In case of any
conflict or inconsistency between the provisions of this Agreement and the provisions
of such other graphic and written documents approved as part of the PDD Plan, the
provisions of this Agreement shall control.
Section 12.19 No Additional Annexation Conditions Imposed. Fraser and
Developer acknowledge and affirm that this Agreement does not impose additional
terms and conditions within the meaning of Section 31-12-107(1)(g), C.R.S. To the
extent that Section 31-12-107(1)(g), C.R.S. might be construed as being ambiguous as
to what might be considered additional terms and conditions, Developer, as the owner
of 100% of the Property, hereby declares that it has voluntarily entered into this
Agreement and states that if an election were held, Developer would approve the terms
and conditions of this Agreement at such election.
Section 12.20 Drafting of Agreement. This Agreement is the product of a
cooperative drafting and negotiating effort by Fraser and Developer and shall not be
construed or interpreted against either party solely on the basis that one party or its
attorney drafted the Agreement or any portion thereof.
Section 12.21 Execution of Other Documents. The parties agree to execute any
additional documents and to take any additional actions necessary to carry out this
Agreement.
Section 12.22 Counterparts, Facsimile. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. This Agreement may be
executed by copies of signature pages sent by email or facsimile.
34
[Signature Pages Follow]
35
IN WITNESS WHEREOF, Fraser and Developer have executed this Agreement
effective as of
TOWN OF FRASER:
By:
Mayor
ATTESTED BY:
Town Clerk
APPROVED, as to legal form by:
Town Attorney
DEVELOPER:
BYERS PEAK PROPERTIES, LLC
By:
C. Clark Lipscomb, President
BYERS PEAK DOWNHILL
ADVENTURES, LLC
By:
C. Clark Lipscomb, President
36
For good and valuable consideration, Grand Park Development, LLC, hereby agrees to
be responsible for and fulfill the obligations specifically relating to the Forest Meadows
Augmentation Plan Pond(s), associated easements, the easements and rights of use in
the Grand Park Ponds and associated system, and any related obligations specifically
set forth herein. Its obligations shall be limited to those specifically relating to its
properties and water rights and shall not extend to any other of those obligations of
Developer set forth in this Agreement.
Grand Park Development, LLC
By:
C. Clark Lipscomb, President
For good and valuable consideration, Cornerstone Winter Park Holdings, LLC, hereby
agrees to be responsible for and fulfill the obligations specifically relating to the
Dedicated Water Rights that are the subject of Case No. 05CW287 and any related
obligations specifically set forth herein. Its obligations shall be limited to those
specifically relating to its properties and water rights and shall not extend to any other
of those obligations of Developer set forth in this Agreement.
Cornerstone Winter Park Holdings, LLC
By:
C. Clark Lipscomb, President
STATE OF COLORADO )
) SS
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me this day of
_, 2013, by _ , as Mayor, and , as
Town Clerk, of Town of Fraser, a municipal corporation of the State of Colorado.
Witness my hand and official seal.
My Commission expires:
( SEAL ) Notary Public
37
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of BYERS PEAK
PROPERTIES, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( SEAL ) Notary Public
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of BYERS PEAK
DOWNHILL ADVENTURES, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( SEAL ) Notary Public
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of CORNERSTONE
WINTER PARK HOLDINGS, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( SEAL ) Notary Public
38
STATE OF COLORADO )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by C. Clark Lipscomb, as President of GRAND PARK
DEVELOPMENT, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My Commission expires:
( S E A L ) Notary Public
39
BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT
LIST OF EXHIBITS
EXHIBIT A — Legal Description of Property (to be provided from Annexation Petition)
EXHIBIT B — Byers Peak Ranch Planned Development District Plan With Conditions
(attached).
EXHIBIT C — Easement Grant and Agreement for the Byers Peak Ranch Augmentation
Pond and Associated Facilities and Infrastructure (attached).
EXHIBIT D —Easement Grant and Agreement for the Forest Meadows Augmentation
Pond and Associated Facilities and Infrastructure (attached).
EXHIBIT E — Map of Grand Park Ponds (attached).
EXHIBIT F — Easement and First Right of Use Agreement for Ponds and Associated
Facilities and Infrastructure (attached).
EXHIBIT G — Reservoir and Ditch Operating Agreement (attached).
EXHIBIT H — Legal Description of the Municipal Parcel (this map is being prepared by
the surveyor and shall be provided by Developer once it has been completed).
5991316_9
40
Byers Peak Ranch
Grading and Excavation Operations Plan—5-20-13
This Grading and Excavation Operations Plan(the "Plan")regulates grading and excavation for
the specific Planning Areas defined in the Byers Peak Ranch Planned Development District
("Byers Peak Ranch PDD") in addition to those provisions set forth in the Development and
Annexation Agreement between the Town of Fraser(the "Town"), Byers Peak Properties, LLC
and Byers Peak Downhill Adventures, LLC (collectively, the"Developer") dated
and recorded at in the public records of Grand County,
Colorado (the "Annexation Agreement"). The term Developer as used herein shall include any
party, including without limitation contractors, subcontractors, A lessees, conducting grading
and excavating operations within the specific Planning Areas within the Byers Peak Ranch PDD.
Compliance Requirements:
I. The Developer shall be responsible f ring compli with all applicable
Fraser, state and federal rules, reg s and statutes, in g, without limitation,
those enforced by the Colorado De ent of Natural Reso the Colorado
Division of Reclamation, and the Co Depa nt of He Environment.
The Developer shall obta' any require shall provide permits to the
Town of Fraser. Best in ent practice e employed with r gard to soil
erosion and prevention at
2. Water Used in ading and atio tions.
If ground w osed or r ed f and�avation operations,
Develop obtain well perm y Engineer, and shall provide
such pe the Tow The De r shall co ly with all applicable provisions
in the decree ed in=se No. 10 09, Water Div 5, and any other applicable
rt decrees. If necess the loper shall apply to the Water Court,
a water court de n underground or surface water rights for
se in gra d excav ion oper
3. tion of Gra g and tion Operations.
T veloper shall commen rading and excavation operations within six months
of ob g any required permit from the State and a Grading Permit from the Town
togethe the prckiding to the Town the required surety for the Developer's
performan e Developer shall only use each such permit for 10 years and shall
discontinue y and all grading, gravel and excavations operations after the 15 year
anniversary of tl-rissuance of the first Grading Permit. During periods of inactivity
(six months or more), the Developer shall move all equipment associated with
grading and excavation operations off site.
4. Hours of Operation.
Monday through Saturday, 7:00 AM to 7:00 PM. There shall be no truck traffic on
Fraser Valley Parkway on Saturdays unless and until the path for bicycles and
pedestrians provided for in Section 7.8 of the Annexation Agreement is constructed
1
and approved by the Town. There shall be no truck traffic to and from the grading
and excavation operations on Saturdays from July 1 through Labor Day of each year.
5. Management of Grading and Excavation Operations.
a. The Developer shall identify the land on which it will carry out grading
and excavations operations in the Grading Permit application. Such land
shall be limited to an area of disturbance of 10 acres for each water storage
facility,with no more than 5 separate areas of grading and excavation at
any one time. To the extent a water storage facility requires more than 10
acres of disturbance, any one area of disturbance may be greater than 10
acres as identified in the application; provided than no more than a total of
50 acres is being disturbed at any one time.
b. The location of any stockpiling of material the Property shall be
identified on the Grading Permit. The total t of stockpiled material
will be kept to a minimum and each pile may more than 40 feet high
and have a life of no more an 24 months.
C. The developer hall limit the mount olluipment on operty and
minimize an ial impact on views.
6. Distance from Resident
Grading and excavation tion 1 be at 1 Nat 0 feet from any existing
residential use( ithin th wn boundary,or 1000 feet from any
residential use roved a ar#of an FPD r a final subdivision plat at the
time the Grading it Application is submit
7. tion. 4
ff may inspect the grading excavation operations during normal
bus in rs to ensure that the e cper is complying with these requirements
and any o onditi imposed y the Town.
8. ck Traffic.
traffic to d from the grading and excavation operations(s) shall not create
haz n Town is contemplated that the Developer shall use County Road 72,
73 an 1 to ort materials. No transport of material will be allowed on
Mill Ave t of Carriage Rd.; Carriage Rd. —north of Mill Avenue;
Norgren Ro north of Mill Avenue; Leonard Lane—north of Mill Avenue; and
Eisenhower Drive unless there is a delivery in Town or extenuating circumstances
relating to road closures. 18 wheel trucks (i.e. belly trucks) shall not exceed
80,000 lbs GVW, 3 or more axle single unit vehicles (i.e. dump trucks) shall not
exceed 54,000 lbs GVW and 2 axle single unit vehicles (smaller dump trucks)
shall not exceed 36,000 lbs GVW. Any load in excess of these requirements shall
require the appropriate permit from Town of Fraser Public Works.
2
9. Public Street Damage.
Traffic from grading and excavation operations shall not damage public streets.
Developer shall be responsible for the costs incurred by the Town in repairing
damage to the public roadways beyond the ordinary wear and tear along the
designated route(s) resulting from truck traffic associated with the grading and
excavation operations, as determined by the Town. Town staff will conduct
annual assessments of the designated roadways. To the extent that there is
identifiable damage from the grading and excavation operations that the Town
determines needs to be repaired in order to prevent further damage, the Town
shall document the damage and repair the same.-'he costs of all repairs shall be
billed to and paid by the Developer.
10. Signage. 4
Developer will provide necessary signage and ba es approved by the Town
along designated route(s) for safety and traffic con insure that truck traffic
does not create a hazard.
11. Impacts.
Developer shall control and mitigate , glare, odor Nannious weeds
on the site and shall not allow noise, du e, odor and noxious weeds to create
a nuisance to adjoining.propert' Develo all provide adequate screening of
the grading and excavation operati by mea berming and existing
vegetation that the use is not object' nable acent properties or the
traveli
12. Gradi excavation operati e limited to the specific Planning Areas as
defined i yers Peak Ranch
6165190_5
3
EXHIBIT F
TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT
TEMPORARY EASEMENT GRANT AND FIRST RIGHT OF USE AGREEMENT FOR
PONDS AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
THIS FORM OF TEMPORARY EASEMENT GRANT AND AGREEMENT
("Agreement")is made and entered into as of the day of , 2013, (the
"Execution Date")by and between GRAND PARK DEVELOPMENT, LLC, a Colorado limited
liability company, whose address is 47 Cooper Creek Way, Suite 321A, P.O. Box 30,Winter
Park, Colorado 80482 ("Grand Park"); CORNERSTONE WINTER PARK HOLDINGS, LLC, a
Colorado limited liability company, whose address is 47 Cooper Creek Way, Suite 321A, P.O.
Box 30, Winter Park, Colorado 80482 ("Cornerstone"); BYERS PEAK PROPERTIES, LLC, a
Colorado limited liability company whose address is 47 Cooper Creek Way, Suite 321A, P.O.
Box 30,Winter Park, Colorado 80482 ("BPP" and together with Grand Park and Cornerstone,
the "Grantors"), and the TOWN OF FRASER, COLORADO, a home rule municipal corporation
(the"Grantee"), whose address is 153 Fraser Avenue, P.O. Box 370,Fraser, Colorado 80442.
RECITALS
A. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by
and between Grantee and BPP and Byers Peak Downhill Adventures, LLC ("BPD"), dated
,recorded at in the public records of Grand County, Colorado
(the"Annexation Agreement"), Grantee annexed land owned by BPP and BPD, as more
specifically described in the Annexation Agreement(the "Property").
B. Pursuant to the Annexation Agreement, BPP and BPD are obligated by certain
deadlines to design, construct and convey to Grantee 60 acre feet of water storage facilities (the
"Dedicated Storage")upstream of the confluence of St. Louis Creek and the Fraser River to be
located on property owned by Grand Park and the Property.
C. As partial security to ensure BPP and BPD construct and convey the Dedicated
Storage to Grantee, if BPP and BPD do not meet the deadlines for design, construction and
conveyance of the Dedicated Storage pursuant to the Annexation Agreement, this Agreement
shall become effective and Grantors shall grant to Grantee the easement and first right of use
described in this Agreement for(1)up to 25 acre feet of water stored in existing ponds at Grand
Park defined as the "Detention Reservoirs" in the decree in Case No. 98CW41, Water Division
5, and decreed conditional in Case No. 99CW315, Water Division 5 (the "Detention Ponds"),
and(2)up to 35 acre feet of water stored in any ponds constructed on the Property not dedicated
to Grantee as part of the Dedicated Storage (the "BPP Ponds") under the terms and conditions
described in this Agreement.
D. Grantors desire by this instrument to grant and convey to Grantee a non-
exclusive,perpetual easement upon the Grand Park's property for the Detention Ponds and
associated facilities and associated rights of access and rights to divert water from the Fraser
River and its tributaries, to store such water in the Detention Ponds and release such water from
the Detention Ponds, and for the first right of use of up to 60 acre feet of water stored in the
1
Detention Ponds and the BPP Ponds, but only to the extent that the Dedicated Storage is not built
within the deadlines agreed upon in the Annexation Agreement. Grantee desires to accept such
easement and first right of use, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the above recitals,which are
incorporated herein by this reference, and the mutual covenants and agreements here set forth
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
GRANT AND AGREEMENT
1. Grant of Easement. Grantors hereby grant, bargain, sell and convey to Grantee
and its successors and assigns forever, a temporary, non-exclusive easement over, upon, across,
under and through the Grand Park's property as shown generally on Exhibit A for the purposes
specified in this Agreement(the "Easement"). The Parties acknowledge the depiction of the
Easement Property on Exhibit A is general because the final design for construction and the
construction of all of the Detention Ponds and related facilities have not been completed, and all
appropriate governmental approvals for the construction have not been obtained. Upon the
Effective Date of this Agreement, the Detention Ponds, the associated facilities and the
infrastructure allowing physical delivery of water to and from the Detention Ponds may be
surveyed, along with appropriate access along such facilities and to the same. The surveyed
location of the Easement on Grand Park's property shall be attached to this Agreement as
Exhibit B to be provided upon the Effective Date of this Agreement. The surveyed
descriptions shall include the following,without limitation.
(a) The easements along the length of the Cozens Ditch, as it exists
now or may be relocated in the future, shall extend 20 feet on one side of the center line of the
ditch and 10 feet on the other side of the ditch for a total of 30 feet in width. The easement from
the headgate of the Cozens Ditch as it crosses land owned by others shall be the same as any
prescriptive easement.
(b) The easement along the length of any other ditch,pipeline or water
conveyance facility that transports water from the Fraser River or its tributaries to storage in the
Detention Ponds shall extend 20 feet on one side of the center line of such facility and 10 feet on
the other side of such facility for a total of 30 feet in width.
(c) The easement along the length of the ditch, pipeline or other water
conveyance facility that transports water released from the Detention Ponds to the Fraser River
or its tributaries shall extend 20 feet on one side of the center line of such facility and 10 feet on
the other side of such facility for a total of 30 feet in width.
(d) The easement for the Detention Ponds to be depicted on Exhibit B
shall be reasonably consistent with industry standards for the purposes contemplated in the
Annexation Agreement.
2. Use of Easement. The Easement may be used by Grantee for(1) diverting and
transporting water across and through the Easement in the Cozens Ditch or any other water
conveyance facility from the Fraser River or its tributaries, to the Detention Ponds; (2) storage of
2
up to 30 acre feet of water in the Detention Ponds pursuant to the decrees entered in Case No.
98CW41, 99CW314 and 99CW315, and any amended or changed decrees in such cases; and (3)
release and transport of such stored water from the Detention Ponds across and through the
Easement to the Fraser River or its tributaries; and(4) access to the Detention Ponds and any and
all associated facilities and infrastructure subject to the terms and conditions set forth in this
Agreement. In addition, Grantee shall have the right to use the Easement for the purposes of
operation, maintenance,repair,replacement and improvement and use of the Detention Ponds,
the associated ditches,pipelines and conveyance facilities, and any and all associated facilities
and infrastructure consistent with the terms and conditions herein, the decreed uses of the same,
the provisions of the decrees in Case Nos. 98CW41, 99CW314 and 99CW315, as they may be
amended, modified or changed from time to time, and the provisions of any plan for
augmentation decreed by Grantee in the future that includes the additional 25 acre feet of water
stored in the Detention Ponds pursuant to the decrees entered in Case No. 98CW41, 99CW314
and 99CW315.
3. Alternate Access. The parties acknowledge that convenient access may not be
available to (a) the headgate and all points along the length of the Cozens Ditch; (b) all points
along the length of the water conveyance facilities transporting water from the Fraser River and
its tributaries to storage in the Detention Ponds and from storage in the Detention Ponds to the
Fraser River or its tributaries; or(c) the Detention Ponds. Accordingly, Grantor shall provide
additional access along all existing roads and roads to be constructed on Grantor's property that
are shown on Exhibit B.
4. Effective Date. This Agreement provides for the partial security to ensure BPP
and BPD construct and convey the Dedicated Storage to Grantee pursuant to the terms and
conditions of the Annexation Agreement. The first right of use of up to 25 acre feet in the
Detention Ponds shall only be effective as to the amount of the 25 acres feet of Dedicated
Storage allocated to the Forest Meadows Augmentation Pond, as defined in the Annexation
Agreement, that is not timely dedicated to Grantee. The first right of use of up to 35 acre feet in
the BPP Ponds is only effective as to the amount of the 35 acre feet of Dedicated Storage
allocated to the Byers Peak Ranch Augmentation Pond, as defined in the Annexation Agreement,
that is not timely dedicated to Grantee. This Agreement shall be executed at the time of the
Annexation Agreement, and placed into escrow with the Title Company of the Rockies, Inc. —
Winter Park. Only at such time as BPP and BPD do not meet the Annexation Agreement
deadlines for design, construction and conveyance of the Dedicated Storage pursuant to the
Annexation Agreement, then written notice from Grantee shall be provided to the Grantors and
to the Title Company of the Rockies, Inc. If the default is not otherwise cured by Grantors
within 30 days after receipt of notice or by another date certain as otherwise agreed to by the
parties, then the title company shall release this Agreement, and Grantee shall record the same.
The date of recording shall be the "Effective Date". This Agreement shall only apply to that
amount of Dedicated Storage that has not been constructed or become operational on the
Effective Date. This Agreement shall automatically terminate with respect to the amount of
Dedicated Storage that has been constructed and becomes operational (whether constructed by
Grantor or Grantee), even after the Effective Date, as long as such construction and operation of
such Dedicated Storage is on the terms and conditions provided for under the Annexation
Agreement as determined in the sole discretion of Grantee. Because Grantee has other
easements by which the Dedicated Storage may be built, the parties specifically contemplate that
3
the easement granted in this Agreement is temporary, and shall be effective until such Dedicated
Storage is constructed.
5. Grantee's First Right of Use; Amount of Storage. Upon the Effective Date of this
Agreement, Grantors bargain, sell and convey to Grantee and its successors and assigns forever
(1) the above-described Temporary Easement; (2) the first right of use for up to 25 acre feet of
water stored in the Detention Ponds; and(3) the first right of use for up to 35 acre feet of water
stored in the BPP Ponds.. Currently, the Detention Ponds are constructed at the time of the
Annexation Agreement to store 32.8 acre feet of water. The Detention Ponds are decreed to
store conditional water storage rights in the total amount of 76 acre feet pursuant to the decree
entered in Case No. 99CW315. In order to fulfill its obligation under this Agreement, Grantors
shall make available to Grantee the first 25 acre feet of water stored in the Detention Ponds and
the first 35 acre feet of water stored in the BPP Ponds, and Grantee shall have the right to use the
such water with priority over any other water stored in any of these ponds.
6. Location and Construction of Detention Ponds. Grantors shall construct the
Detention Ponds as decreed in Case No. 99CW315 and 08CW 194,and shall seek any and all
appropriate government approvals, including but not limited to, any water court adjudications
necessary to use the Detention Ponds as storage facilities as soon as practicable but not later than
the Effective Date of this Agreement. Five of the decreed Detention Ponds have been
constructed, but are located more than 200 feet from their decreed locations. On or before
November 2018, Grantors must file an application for a finding of reasonable diligence to
preserve the conditional storage water rights in the Detention Ponds, and such applications
necessary to make the constructed Detention Ponds absolute. All water storage contemplated in
this agreement shall be that water that is stored in the active capacity of any pond.
7. Assignment of Additional Rights. Upon the Effective Date of this Agreement,
Grantors also assigns a portion of any and all of Grantors' interest in and to any and all easement
rights it may have in connection with operation, maintenance, repair, replacement and
improvement and use of the Detention Ponds, the associated ditches,pipelines and conveyance
facilities, and any and all associated facilities and infrastructure.
8. No Encumbrance to Title. Grantor shall not burden or encumber the title to the
Easement in any manner that will compromise Grantee's rights under this Agreement and the
Annexation Agreement. If the Grantor so burdens or encumbers the Easement, Grantor shall be
obligated to remove any burden or encumbrance. As specified in the Annexation Agreement,
Grantee may withhold any approvals,permits, authorizations, inspections, acceptances for
development or any associated activities on the Byers Peak Ranch property until Grantor
removes any burden or encumbrance to Grantee's satisfaction.
9. Miscellaneous Provisions.
9.1 Governing Law. The validity and effect of this Agreement shall be
determined in accordance with the laws of the State of Colorado.
9.2 Binding Effect. The terms,provisions, covenants, agreements,restrictions
and conditions in this Easement Agreement are intended to be, and shall be construed as,
4
covenants running with the Grand Park's property, the Detention Ponds, the Dedicated Storage
and the Dedicated Water Rights and shall bind the parties and all subsequent owners of the
applicable portions thereof. The benefit of such terms,provisions, covenants, agreements,
restrictions and conditions shall run to and may be enforced by the parties hereto and their
respective successors, assigns or transferees.
9.3 Recording. This Agreement shall be executed at the Annexation
Agreement's effective date. At that time, it shall be placed into escrow with the Title Company
of the Rockies, Inc. —Winter Park,where it shall be held and NOT RECORDED, except as
provided for under Section 4 of this Agreement. . Once released from escrow, as described
above in Section 4, this Agreement shall be recorded with the final Exhibit B in the real property
records for Grand County, Colorado.
9.4 Notices. Any notice or communication required hereunder between
Grantee and Grantors must be in writing, and may be given either personally; overnight by UPS
or FedEx; by registered or certified mail,return receipt requested; by facsimile; or by electronic
mail. If given by registered or certified mail, the same shall be deemed to have been given and
received on the first to occur of(i) actual receipt by any of the addressees designated below as
the party to whom notices are to be sent, or(ii) five days after a registered or certified letter
containing such notice, properly addressed,with postage prepaid, is deposited in the United
States mail. If personally or overnight delivered, a notice shall be deemed to have been given
when delivered to the party to whom it is addressed. If delivered by facsimile or electronic mail,
a notice shall be deemed to have been given when sent, as long as no delivery failure message is
received by the sending party. Any party hereto may at any time,by giving written notice to the
other party hereto as provided herein, designate any other address in substitution of the address
to which such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
If to Grantee: Town of Fraser
153 Fraser Avenue
P.O. Box 370
Fraser, CO 80442
Attention: Manager
Email: jdurbinktown.fraser.co.us
with a copy to: Christopher L. Thorne, Esq.
Kylie J. Crandall
Holland& Hart LLP
555 17th Street
Denver, CO 80202
Email: cthorne( ,hollandhart.com
Email: kicrandall( ,hollandhart.com
If to Grantors: Grand Park Development, LLC,
Cornerstone Winter Park Holdings, LLC
and Byers Peak Properties, LLC
5
P.O. Box 30
Winter Park, CO 80482
Attention: C. Clark Lipscomb
Email: clarkgcstoneholdin sg com
with a copy to: Ramsey L. Kropf, Esq.
Patrick,Miller,Kropf&Noto, P.C.
229 Midland Avenue
Basalt, CO 81621
Email: Kropf@waterlaw.com
9.5 Severability. If any provision of this Agreement or the application thereof
to any person or circumstance shall be invalid, illegal or unenforceable, it shall not affect or
impair the validity, legality or enforceability of any other provision of this Agreement, or the
applicability of such provision to persons or circumstances other than those to which it is held
invalid or unenforceable, and each provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
9.6 Counterparts. It is hereby mutually agreed upon by the parties to this
agreement that facsimile and electronic communication and/or acceptance shall be an acceptable
and binding form of communication. This Agreement may be executed in several counterparts
and, as so executed, shall constitute one agreement,binding on all the parties as though all the
parties have signed the signature pages. All signatures shall be binding as of the date of
signature on facsimile or electronic communication.
[signature pages to follow]
6
IN WITNESS WHEREOF, Grantors and Grantee have executed this Agreement on the
date first above written.
GRANTORS:
GRAND PARK DEVELOPMENT,LLC, a
Colorado limited liability company
By:
Name:
Title:
CORNERSTONE WINTER PARK
HOLDINGS,LLC, a Colorado limited liability
company
By:
Name:
Title:
BYERS PEAK PROPERTIES, LLC, a Colorado
limited liability company
By:
Name:
Title:
GRANTEE:
TOWN OF FRASER, COLORADO, a home rule
municipality,
By:
Mayor of the Town of Fraser, Colorado
ATTEST:
Town Clerk
7
STATE OF )
SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
by as of Grand Park Development,
LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF )
SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
by as of Cornerstone Winter Park
Holdings, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF )
SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
by as of Byers Peak Properties,
LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
8
STATE OF COLORADO )
) SS.
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me this day of
,by ,Mayor, Town of Fraser, Colorado and
as Clerk of the Town of Fraser, Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
9
EXHIBIT A
TO
EASEMENT GRANT AND AGREEMENT
Depiction of Easement
10
EXHIBIT B
TO
EASEMENT GRANT AND AGREEMENT
Survey of Easement
5991300_7
11
EXHIBIT C
TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT
EASEMENT GRANT AND AGREEMENT FOR BYERS PEAK RANCH
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
THIS EASEMENT GRANT AND AGREEMENT FOR BYERS PEAK RANCH
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
("Agreement")is made and entered into as of the day of , 20 by
and between BYERS PEAK PROPERTIES, LLC, a Colorado limited liability company (the
"Grantor"), whose address is 46 Market Street,Fraser, CO 80442 and mail:, P.O. Box 30, Winter
Park, Colorado 80482 and the TOWN OF FRASER, COLORADO, a municipal corporation of
the State of Colorado (the"Grantee"),whose address is 153 Fraser Avenue, P.O. Box 370,
Fraser, Colorado 80442.
RECITALS
A. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by
and between Grantee and Grantor and Byers Peak Downhill Adventures, LLC ("BPD"), dated
, recorded at in the public records of Grand County, Colorado
(the"Annexation Agreement"), Grantee annexed land owned by Grantor, as more specifically
described in the Annexation Agreement.
B. Pursuant to the Annexation Agreement, Grantor and BPD are obligated to locate,
design and construct storage facilities ("Dedicated Storage")to store 60 acre feet of operational
storage water and to convey to Grantee a total of 60 acre feet of water storage rights that have
been decreed for storage and municipal and other beneficial uses (the"Dedicated Water Rights")
to be stored in the Dedicated Storage.
C. Grantor and BPD are obligated to design, permit and construct a pond or ponds
that will have the capacity to store at least 35 acre feet of operational storage water on the
Easement Property as defined below ("BPR Pond"),which will constitute partial satisfaction of
Grantor and BPD'S obligation to construct the Dedicated Storage. The details of this obligation
are as described in the Annexation Agreement.
D. Grantor shall convey to Grantee the first 35 acre feet of the storage water rights
decreed in Case No. IOCW309,Water Division 5 (the "Fraser BPR Water Rights")via special
warranty deed upon entry of the decree in Case No. IOCW309 or upon completion of the BPR
Pond and approval and acceptance of the BPR Pond by Grantee, whichever occurs first. The
conveyance of the Fraser BPR Water Rights to Grantee will constitute partial satisfaction of
Grantor and BPD'S obligation to convey the Dedicated Water Rights.
E. The location of the BPR Pond; the facilities necessary or convenient to divert
water under the Fraser BPR Water Rights and transport such water to fill the BPR Pond, to
operate the BPR Pond, and to release such water from the BPR Pond into the Fraser River or its
tributaries; and access to the BPR Pond and such facilities will be located generally as shown on
Exhibit A attached hereto and incorporated herein by this reference (the"Easement Property").
F. Grantor desires by this instrument to grant and convey to Grantee a perpetual,
non-exclusive easement upon the Easement Property for the BPR Pond and associated facilities,
after it is constructed and dedicated to Grantee. Such easement will include associated facilities
and associated rights of access and rights to divert water from St. Louis Creek, store water in the
BPR Pond and release water from the BPR Pond; and Grantee desires to accept such easement,
upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the above recitals,which are
incorporated herein by this reference, and the mutual covenants and agreements here set forth
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
GRANT AND AGREEMENT
1. Grant of Easement. Grantor hereby grants,bargains, sells and conveys to Grantee
and its successors and assigns forever, a perpetual,non-exclusive easement over, upon, across,
under and through the Easement Property as shown generally on Exhibit A for the purposes
specified in this Agreement(the "Easement"). The Easement for the BRP Pond and associated
facilities and infrastructure will be different from the Easement Property. The Parties
acknowledge the depiction of the Easement Property on Exhibit A is general because the final
design for construction of the BPR Pond and related facilities have not been completed, and all
appropriate governmental approvals for the construction have not been obtained. Upon
completion of the construction of the BPR Pond, Grantor shall survey the BPR Pond, associated
facilities and water delivery infrastructure, along with appropriate access along such facilities
and to the same. At such time, the surveyed location of the easement on Grantor's property shall
be attached to this Agreement as Exhibit B to be provided upon construction and survey of the
BPR Pond.. The surveyed descriptions shall include the following, without limitation.
(a) The easements along the length of the Gaskill Ditch, Beaver Dam
Ditch and Clark's Ditch No. 1, as those ditches are located on Grantor's property to the BPR
Pond, as they exist now or may be relocated in the future, shall extend 10 feet on one side of the
center line of each ditch and 20 feet on the other side of each ditch for a total of 30 feet in width.
The easement from the headgate of the Gaskill Ditch, Beaver Dam Ditch and Clark's Ditch No.
1, as it crosses land owned by others shall be the same dimensions as any prescriptive easement.
(b) The easement along the length of the ditch, pipeline or other water
conveyance facility, on Grantor's property, that transports water released from the BPR Pond to
the Fraser River or its tributaries shall extend 10 feet on one side of the center line of such
facility and 20 feet on the other side of such facility for a total of 30 feet in width..
(c) The easement for the BPR Pond to be depicted on Exhibit B shall
be reasonably consistent with industry standards for the purposes contemplated in the
Annexation Agreement.
2
2. Use of Easement. The Easement may be used by Grantee for(1) diverting and
transporting Fraser BPR Water Rights from St. Louis Creek to the BPR Pond; (2) storage of the
Fraser BPR Water Rights in the BPR Pond; (3)release and transport of the stored BPR Water
Rights from the BPR Pond across and through the Easement to the Fraser River or its tributaries;
and(4) access to the BPR Pond and any and all associated facilities and infrastructure subject to
the terms and conditions set forth in this Agreement. Grantee shall have the right to use the
Easement for the purposes of operation, maintenance,repair,replacement and improvement and
use of the BPR Pond, the associated ditches, pipelines and conveyance facilities and any and all
associated facilities and infrastructure consistent with the terms and conditions herein, the
decreed uses of the same, the provisions of the decree in Case No. IOCW309, as they may be
amended,modified or changed from time to time, and the provision of any plan for augmentation
decreed by Grantee in the future that includes the Fraser BPR Water Rights.
3. Storage Capacity. The active capacity of the BPR Pond in excess of 35 acre feet
is reserved for Grantor's use. If the BPR Pond is constructed with active capacity in excess of 35
acre feet, the operation of the BPR Pond shall be governed by the Reservoir and Ditch Operating
Agreement, which is Exhibit F to the Annexation Agreement, and is dated ,
recorded at in the public records of Grand County, Colorado.
4. Alternate Access. The parties acknowledge that convenient access may not be
available to (a) the headgates of the Gaskill Ditch, Beaver Dam Ditch or Clark's Ditch No. 1; (b)
all points along the length of the water conveyance facilities transporting water from St. Louis
Creek to storage in the BPR Pond and from storage in the BPR Pond to the Fraser River or its
tributaries; or(c) the BPR Pond. Accordingly, Grantor shall provide additional access along all
existing roads and roads to be constructed on Grantor's property that are shown on Exhibit B. .
5. Assignment of Additional Rights. Grantor also assigns a portion of any and all of
Grantor's interest in and to any and all easement rights it may have in connection with the BPR
Pond, as described in this Agreement.
6. Temporary Easement Provision. Because the parties contemplate that Grantor
will construct and convey to Grantor the BPR Pond in the future pursuant to the Annexation
Agreement deadlines, the Grantor provides the following"Temporary Easement",which will
become effective only if the BPR Pond is not constructed and dedicated to Grantee within the
deadlines in the Annexation Agreement.
6.1 The Temporary Easement allows Grantee to enter and construct the BPR
Pond on the Easement Property if Grantor does not do so as prescribed by the Annexation
Agreement. If the BPR Pond is constructed for at least 35 acre feet as contemplated in the
Annexation Agreement and is dedicated to Grantee within the time set forth in the Annexation
Agreement, this Temporary Easement shall not become effective. This Temporary Easement
shall automatically terminate upon conveyance of the BPR Pond to Grantee as contemplated in
the Annexation Agreement.
6.2 If the BPR Pond is not constructed, the Temporary Easement shall become
effective on the I Ith year anniversary of the Annexation Agreement's effective date to allow
Grantee to access the Easement Property (shown as Exhibit A) as reasonably necessary for only
3
the limited purpose to construct the BPR Pond and associated facilities to convey water to and
from the BPR Pond. Reasonable access to the Easement Property shall only include access by
existing roads, along the water supply ditches and to, through, across, along,under and around
the BPR Pond footprint.
6.3 Any alterations to the Temporary Easement shall only be made by the
parties in writing.
7. No Encumbrance to Title. Grantor shall not burden or encumber the title to the
Easement Property in any manner that will compromise Grantee's rights under this Agreement
and the Annexation Agreement. If the Grantor so burdens or encumbers the Easement Property,
Grantor shall be obligated to remove any burden or encumbrance. As specified in the
Annexation Agreement, Grantee may withhold any approvals for development on the Byers Peak
Ranch property until Grantor removes any burden or encumbrance to Grantee's satisfaction.
8. Miscellaneous Provisions.
8.1 Governing Law. The validity and effect of this Agreement shall be
determined in accordance with the laws of the State of Colorado.
8.2 Binding ms. The terms, provisions, covenants, agreements, restrictions
and conditions in this Agreement are intended to be, and shall be construed as, covenants
running with the Easement Property, Dedicated Storage, and Dedicated Water Rights and shall
bind the parties and all subsequent owners of the applicable portions thereof. The benefit of such
terms,provisions, covenants, agreements,restrictions and conditions shall run to and may be
enforced by the parties hereto and their respective successors, assigns or transferees.
8.3 Recording. This Easement Grant and Agreement shall be executed at
the Annexation Agreement's effective date. At that time, it shall be placed into escrow with the
Title Company of the Rockies, Inc. —Winter Park,where it shall be held and NOT RECORDED
until the BPR Pond is constructed and dedicated to Grantee within the deadlines in the
Annexation Agreement or in accordance with the provisions of subparagraph (b) of this section.
(a) Once the BPR Pond is constructed and conveyed to the Grantee,
then after such conveyance, Exhibit B shall be finalized, attached to this Agreement, and this
Agreement shall be recorded at that time.
(b) If the BPR Pond is not constructed and conveyed to the Grantee
within the deadlines proscribed by the Annexation Agreement, then upon such deadline's
expiration, this Agreement shall be recorded, and the Temporary Easement shall become
effective, and Grantee may build the BPR Pond, and create Exhibit B to reflect the permanent
Easement granted herein. At that time, this Agreement shall be re-recorded with the final
Exhibit B.
(c) Any recording shall be made in the real property records for Grand
County, Colorado.
4
8.4 Notices. Any notice or communication required hereunder between
Grantee and Grantor must be in writing, and may be given either personally; overnight by UPS
or FedEx; by registered or certified mail, return receipt requested; by facsimile; or by electronic
mail. If given by registered or certified mail, the same shall be deemed to have been given and
received on the first to occur of(i) actual receipt by any of the addressees designated below as
the party to whom notices are to be sent, or(ii) five days after a registered or certified letter
containing such notice, properly addressed,with postage prepaid, is deposited in the United
States mail. If personally or overnight delivered, a notice shall be deemed to have been given
when delivered to the party to whom it is addressed. If delivered by facsimile or electronic mail,
a notice shall be deemed to have been given when sent, as long as no delivery failure message is
received by the sending party. Any party hereto may at any time,by giving written notice to the
other party hereto as provided herein, designate any other address in substitution of the address
to which such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
If to Grantee: Town of Fraser
153 Fraser Avenue
P.O. Box 370
Fraser, CO 80442
Attention: Manager
Email: jdurbingtown.fraser.co.us
with a copy to: Christopher L. Thorne, Esq.
Kylie J. Crandall, Esq.
Holland& Hart LLP
555 17th Street, Suite 3200
Denver, CO 80202
Email: cthorne( ,hollandhart.com
Email: kicrandallkhollandhart.com
If to Grantor: Cornerstone Winter Park Holdings, LLC
P.O. Box 30
Winter Park, CO 80482
Attention: C. Clark Lipscomb
Email: clarkkcstoneholdings.com
with a copy to: Ramsey L. Kropf, Esq.
Patrick,Miller,Kropf&Noto, P.C.
229 Midland Avenue
Basalt, CO 81621
Email Kropfkwaterlaw.com
8.5 Severability. If any provision of this Agreement or the application thereof
to any person or circumstance shall be invalid, illegal or unenforceable, it shall not affect or
impair the validity, legality or enforceability of any other provision of this Agreement, or the
applicability of such provision to persons or circumstances other than those to which it is held
5
invalid or unenforceable, and each provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
8.6 Counterparts. It is hereby mutually agreed upon by the parties to this
agreement that facsimile and electronic communication and/or acceptance shall be an acceptable
and binding form of communication. This Agreement may be executed in several counterparts
and, as so executed, shall constitute one agreement,binding on all the parties as though all the
parties have signed the signature pages. All signatures shall be binding as of the date of
signature on facsimile or electronic communication.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement on the
date first above written.
GRANTOR:
BYERS PEAK PROPERTIES, LLC, a Colorado
limited liability company
By:
Name: C. Clark Lipscomb
Title: President, Byers Peak Properties, LLC
GRANTEE:
TOWN OF FRASER, COLORADO, a Colorado
municipal corporation,
By:
Mayor of the Town of Fraser, Colorado
ATTEST:
Town Clerk
6
STATE OF )
SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
by as of Byers Peak Properties,
LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
SS.
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me this day of
,by ,Mayor, Town of Fraser, Colorado and
as Clerk of the Town of Fraser, Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
7
EXHIBIT A
TO
EASEMENT GRANT AND AGREEMENT FOR BYERS PEAK RANCH
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
Depiction of Easement Property
8
EXHIBIT B
TO
EASEMENT GRANT AND AGREEMENT FOR BYERS PEAK RANCH
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
Surveyed Map and Legal Description for Final Easement Location
5977955 7
9
EXHIBIT D
TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT
EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
THIS EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
("Agreement") is made and entered into as of the day of , 20 by
and between GRAND PARK DEVELOPMENT, LLC, a Colorado limited liability company (the
"Grantor"),whose address is 46 Market Street, Fraser CO 80442, P.O. Box 30, Winter Park,
Colorado 80482 and the TOWN OF FRASER, COLORADO, a municipal corporation of the
State of Colorado (the "Grantee"),whose address is 153 Fraser Avenue, P.O. Box 370, Fraser,
Colorado 80442.
RECITALS
A. Grantor is the owner of certain real property located in Grand County, Colorado,
which includes the approved site of the Forest Meadow Augmentation Plan Pond(the "FM
Pond") as generally described in the decree entered in Case No. 83CW362,Water Division 5.
Grantee is the owner of the augmentation plan and all associated water rights decreed in Case
No. 83CW362.
B. Pursuant to the Byers Peak Ranch Annexation and Development Agreement by
and between Grantee, Byers Peak Properties, LLC ("BPP") and Byers Peak Downhill
Adventures, LLC ("BPD"), dated (the "Annexation Agreement"), BPP and BPD
are obligated to locate, design and construct storage facilities ("Dedicated Storage") to store 60
acre feet of operational storage water and to convey to Grantee a total of 60 acre feet of water
storage rights that have been decreed for storage and municipal and other beneficial uses (the
"Dedicated Water Rights") to be stored in the Dedicated Storage.
C. BPP and BPD are obligated to design, permit and construct a pond or ponds that
will have the capacity to store at least 25 acre feet of operational storage water in the general
location of the FM Pond on the Easement Property described below,which will constitute partial
satisfaction of BPP and BPD'S obligation to construct the Dedicated Storage. The details of this
obligation are as described in the Annexation Agreement.
D. In partial satisfaction of the obligation to convey the Dedicated Water Rights,
upon execution of the Annexation Agreement Grantor conveyed to Grantee via special warranty
deed the water rights decreed in Case No. 05CW287,Water Division 5, including the conditional
storage water right for 25 acre feet(the"CWP-FM Reservoir Rights").
E. It is anticipated that Grantee will seek Water Court approval to change the place
of storage of the CWP-FM Reservoir Rights to the site of the FM Pond prior to or upon
completion of the construction of the FM Pond.
F. The location of the FM Pond; the facilities necessary or convenient to divert water
under the Elk Creek Ditch No. 2 water rights, the CWP-FM Reservoir Rights, and/or other water
from Elk Creek pursuant to the applicable Water Court decrees, and transport such water to fill
the FM Pond, to operate the FM Pond, and to release water from the FM Pond into Elk Creek or
the Fraser River; and access to the FM Pond and such facilities will be located generally as
shown on Exhibit A attached hereto and by this reference made a part hereof(the"Easement
Property").
G. Grantor desires by this instrument to grant and convey to Grantee a perpetual,
non-exclusive easement upon the Easement Property for the FM Pond and associated facilities,
after it is constructed and dedicated to Grantee. Such easement will include and associated rights
of access and rights to divert water from Elk Creek, store water in the FM Pond and release
water from the FM Pond, and Grantee desires to accept such easement, upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the above recitals,which are
incorporated herein by this reference, and the mutual covenants and agreements set forth herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
GRANT AND AGREEMENT
1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to Grantee
and its successors and assigns forever, a perpetual, non-exclusive easement over, upon, across,
under and through the Easement Property as shown generally on Exhibit A for the purposes
specified in this Agreement(the "Easement"). The Easement for the BRP Pond and associated
facilities and infrastructure will be different from the Easement Property. The Parties
acknowledge the depiction of the Easement Property on Exhibit A is general because the final
design for construction of the FM Pond and related facilities have not been completed, and all
appropriate governmental approvals for the construction have not been obtained. Upon
completion of the construction of the FM Pond, Grantor shall survey the FM Pond, associated
facilities and water delivery infrastructure, along with appropriate access along such facilities
and to the same. At such time, the surveyed location of the easement on Grantor's property shall
be attached to this Agreement as Exhibit B to be provided upon construction and survey of the
FM Pond. The surveyed descriptions shall include the following,without limitation.
(a) The easement along the length of the Elk Creek Ditch No. 2 from
the headgate to the FM Pond, as that ditch is located on Grantor's property to the FM Pond, as it
exists now or may be relocated in the future shall extend 20 feet on one side of the center line of
the ditch and 10 feet on the other side of the ditch for a total of 30 feet in width. The easement
from the headgate of the Elk Creek Ditch No. 2 as it crosses land owned by others shall be the
same as any prescriptive easement.
(b) The easement along the length of any ditch, pipeline or other water
conveyance facility that transports water from Elk Creek to the FM Pond shall extend 20 feet on
one side of the center line of such facility and 10 feet on the other side of such facility for a total
of 30 feet in width.
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(c) The easement along the ditch, pipeline or other water conveyance
facility that transports the water released from the FM Pond to Elk Creek or the Fraser River
shall extend 20 feet on one side of the center line of such facility and 10 feet on the other side of
such facility for a total of 30 feet in width.
(d) The easement for the FM Pond to be depicted on Exhibit B shall
be reasonably consistent with industry standards for the purposes contemplated in the
Annexation Agreement.
2. Use of Easement. The Easement may be used by Grantee for(1) diverting and
transporting water across and through the Easement in the Elk Creek Ditch No. 2 as it exists or is
reconstructed, to the FM Pond; (2) diverting and transporting water across and through the
Easement from Elk Creek; (3) storage of up to 25 acre feet of water in the FM Pond pursuant to
the decrees entered in Case Nos. 83CW362 and 05CW287, and any amended or changed decrees
in such cases; (4)release and transport of such stored water from the FM Pond across and
through the Easement to Elk Creek and/or the Fraser River; and (5) access to the FM Pond and
any and all associated facilities and infrastructure subject to the terms and conditions set forth in
this Agreement. In addition, Grantee shall have the right to use the Easement for the purposes of
operation, maintenance,repair, replacement and improvement and use of the FM Pond, the
associated ditches,pipelines and conveyance facilities, and any and all associated facilities and
infrastructure consistent with the terms and conditions herein, the decreed uses of the same, the
provisions of the decree in Case Nos. 83CW362 and 05CW287, as they may be amended,
modified or changed from time to time, and the provisions of any plan for augmentation decreed
by Grantee in the future that includes the 25 acre feet of water stored in the FM Pond pursuant to
the decrees entered in Case No. 83CW362 and 05CW287.
3. Alternate Access. The parties acknowledge that convenient access may not be
available to (a) the headgate and all points along the length of the Elk Creek Ditch No. 2; (b) all
points along the length of the water conveyance facilities transporting water from Elk Creek to
storage in the FM Pond and from storage in the FM Pond to the Fraser River or its tributaries; or
(c) the FM Pond. Accordingly, Grantor shall provide additional access along all existing roads
and roads to be constructed on Grantor's property that are shown on Exhibit B.
4. Assignment of Additional Rights. Grantor assigns any and all of Grantor's
interest in and to any and all easement rights it may have in connection with the FM Pond, as
described in this Agreement.
5. Vacation of Prescriptive Easement. To the extent that the alignment of the Elk
Creek Ditch No. 2 across Grantor's property as constructed to deliver water to the Reservoir is
different than historic alignment of the Elk Creek Ditch No. 2, Grantee agrees that, upon the re-
recording of this Agreement with the completed Exhibit B provided for herein that includes the
surveyed legal description of the Elk Creek Ditch No. 2, any prescriptive easement rights
associated with the historic alignment of such ditch shall be vacated by the Grantee to the extent
the historic alignment is not included within the surveyed legal description agreed to by the
parties.
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6. Temporary Easement Provision. Because the parties contemplate that Grantor
will construct and convey to Grantor the FM Pond in the future pursuant to the Annexation
Agreement deadlines, the Grantor provides the following "Temporary Easement",which will
become effective only if the FM Pond is not constructed and dedicated to Grantee within the
deadlines in the Annexation Agreement.
6.1 The Temporary Easement allows Grantee to enter and construct the FM
Pond on the Easement Property if Grantor does not do so as prescribed by the Annexation
Agreement. If the FM Pond is constructed for at least 25 acre feet as contemplated in the
Annexation Agreement and is dedicated to Grantee within the time set forth in the Annexation
Agreement, this Temporary Easement shall not become effective. This Temporary Easement
shall automatically terminate upon conveyance of the FM Pond to Grantee as contemplated in
the Annexation Agreement.
6.2 If the FM Pond is not constructed, the Temporary Easement shall become
effective on the 7t'year anniversary of the Annexation Agreement's effective date to allow
Grantee to access the Easement Property (shown as Exhibit A) as reasonably necessary for only
the limited purpose to construct the FM Pond and associated facilities to convey water to and
from the FM Pond. Reasonable access to the Easement Property shall only include access by
existing roads, along the water supply ditches and to, through, across, along,under and around
the FM Pond footprint.
6.3 Any alterations to the Temporary Easement shall only be made by the
parties in writing.
7. No Encumbrance to Title. Grantor shall not burden or encumber the title to the
Easement Property in any manner that will compromise Grantee's rights under this Agreement
and the Annexation Agreement. If the Grantor so burdens or encumbers the Easement Property,
Grantor shall be obligated to remove any burden or encumbrance. As specified in the
Annexation Agreement, Grantee may withhold any approvals,permits, authorizations,
inspections, acceptances for development or any associated activities on the Byers Peak Ranch
property until Grantor removes any burden or encumbrance to Grantee's satisfaction.
8. Miscellaneous Provisions.
8.1 Governing Law. The validity and effect of this Agreement shall be
determined in accordance with the laws of the State of Colorado.
8.2 Binding Effect. The terms,provisions, covenants, agreements, restrictions
and conditions in this Agreement are intended to be, and shall be construed as, covenants
running with the Easement Property, the Dedicated Storage, and the Dedicated Water Rights and
shall bind the parties and all subsequent owners of the applicable portions thereof. The benefit
of such terms, provisions, covenants, agreements, restrictions and conditions shall run to and
may be enforced by the parties hereto and their respective successors, assigns or transferees.
8.3 Recording. This Agreement shall be executed at the Annexation
Agreement's effective date. At that time, it shall be placed into escrow with Title Company of
the Rockies, Inc.—Winter Park, where it shall be held and NOT RECORDED until the FM Pond
4
is constructed and dedicated to Grantee within the deadlines in the Annexation Agreement or in
accordance with the provisions of subparagraph (b) of this section.
(a) Once the FM Pond is constructed and conveyed to the Grantee,
then after such conveyance, Exhibit B shall be finalized, attached to this Agreement, and this
Agreement shall be recorded at that time.
(b) If the FM Pond is not constructed and conveyed to the Grantee
within the deadlines proscribed by the Annexation Agreement, then upon such deadline's
expiration, this Agreement shall be recorded, and the Temporary Easement shall become
effective, and Grantee may build the FM Pond, and create Exhibit B to reflect the permanent
Easement granted herein. At that time, this Agreement shall be re-recorded with the final
Exhibit B.
(c) Any recording shall be made in the real property records for Grand
County, Colorado.
8.4 Notices. Any notice or communication required hereunder between
Fraser and Developer must be in writing, and may be given either personally; overnight by UPS
or FedEx; by registered or certified mail, return receipt requested; by facsimile; or by electronic
mail. If given by registered or certified mail, the same shall be deemed to have been given and
received on the first to occur of(i) actual receipt by any of the addressees designated below as
the party to whom notices are to be sent, or(ii) five days after a registered or certified letter
containing such notice, properly addressed,with postage prepaid, is deposited in the United
States mail. If personally or overnight delivered, a notice shall be deemed to have been given
when delivered to the party to whom it is addressed. If delivered by facsimile or electronic mail,
a notice shall be deemed to have been given when sent, as long as no delivery failure message is
received by the sending party. Any party hereto may at any time,by giving written notice to the
other party hereto as provided herein, designate any other address in substitution of the address
to which such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
If to Grantee: Town of Fraser
153 Fraser Avenue
P.O. Box 370
Fraser, CO 80442
Attention: Manager
Email: jdurbingtown.fraser.co.us
with a copy to: Christopher L. Thorne, Esq.
Kylie J. Crandall, Esq.
Holland& Hart LLP
555 17th Street, Suite 3200
Denver, CO 80202
Email: cthorne( ,hollandhart.com
Email: kicrandallkhollandhart.com
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If to Grantor: Grand Park Development, LLC
P.O. Box 30
Winter Park, CO 80482
Attention: C. Clark Lipscomb
Email: clarkgcstoneholdin sg com
with a copy to: Ramsey L. Kropf, Esq.
Patrick,Miller,Kropf&Noto, P.C.
229 Midland Avenue
Basalt, CO 81621
Email: Kropf@waterlaw.com
8.5 Severability. If any provision of this Agreement or the application thereof
to any person or circumstance shall be invalid, illegal or unenforceable, it shall not affect or
impair the validity, legality or enforceability of any other provision of this Agreement, or the
applicability of such provision to persons or circumstances other than those to which it is held
invalid or unenforceable, and each provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
8.6 Counterparts. It is hereby mutually agreed upon by the parties to this
agreement that facsimile and electronic communication and/or acceptance shall be an acceptable
and binding form of communication. This Agreement may be executed in several counterparts
and, as so executed, shall constitute one agreement, binding on all the parties as though all the
parties have signed the signature pages. All signatures shall be binding as of the date of
signature on facsimile or electronic communication.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement on the
date first above written.
GRANTOR:
GRAND PARK DEVELOPMENT,LLC, a
Colorado limited liability company
By:
Name:
Title:
6
GRANTEE:
TOWN OF FRASER, COLORADO, a Colorado
municipal corporation,
By:
Mayor of the Town of Fraser, Colorado
ATTEST:
Town Clerk
7
STATE OF )
SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
by as of Grand Park Development,
LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
SS.
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me this day of
,by ,Mayor, Town of Fraser, Colorado and
as Clerk of the Town of Fraser, Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
8
EXHIBIT A
TO
EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
Depiction of Easement Property
9
EXHIBIT B
TO
EASEMENT GRANT AND AGREEMENT FOR FOREST MEADOWS
AUGMENTATION POND AND ASSOCIATED FACILITIES AND INFRASTRUCTURE
Surveyed Mqp and Legal Description for Final Easement Location
5977147_7
10
EXHIBIT G
TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT
AGREEMENT
RESERVOIR AND DITCH OPERATING AGREEMENT
THIS RESERVOIR AND DITCH OPERATING AGREEMENT
("Agreement") is made and entered into as of the day of
, 2013, by and between BYERS PEAK PROPERTIES,
LLC, a Colorado limited liability company ("BPP"), BYERS PEAK DOWNHILL
ADVENTURES, LLC, a Colorado limited liability company ("BPD"), GRAND
PARK DEVELOPMENT, LLC, a Colorado limited liability company ("GPD"),
whose address is 46 Market Street, P.O. Box 30, Winter Park, Colorado 80482
(collectively "Developers") and the TOWN OF FRASER, COLORADO, a
municipal corporation of the State of Colorado ("Fraser"), whose address is 153
Fraser Avenue, P.O. Box 370, Fraser, Colorado 80442.
RECITALS
A. BPP and BPD are the owners of certain real property located in
Grand County, Colorado, commonly known as Byers Peak Ranch (the
"Property", the legal description of which is set forth in the Annexation
Agreement defined below). Byers Peak Ranch includes the sites of the Byers
Peak Ranch Augmentation Pond ("BPR Pond") described in the application filed
in Case No. lOCW309, Water Division 5. GPD is the owner of certain real
property located in Grand County, Colorado, commonly known as the Forest
Meadows property and Grand Park, which includes the site of the Forest Meadow
Augmentation Plan Pond (the "FM Pond") described in the decree entered in
Case No. 83CW362, Water Division 5 (collectively the FM Pond and BPR Pond
shall be referred to as the "Ponds").
B. Pursuant to the Byers Peak Ranch Annexation and Development
Agreement by and between Fraser, BPP, and BPD, dated , 2013
and recorded in the official records of Grand County, Colorado at
(the "Annexation Agreement"), BPP and BPD are
obligated to locate, design and construct storage facilities ("Dedicated Storage")
to fill and store 60 acre feet of operational storage water and to convey to such
water to Fraser (the "Dedicated Water Rights"). The details regarding the
Dedicated Storage and the required conveyance are specified in the Annexation
Agreement.
C. In connection with the construction of the Ponds pursuant to the
Annexation Agreement, the Annexation Agreement provides that Developers
may construct ponds and associated infrastructure with operational capacities
greater than those necessary to store the 60 acre-feet of Dedicated Water Rights.
Therefore, the parties desire to enter into this Agreement to set forth terms and
conditions for their joint use of the FM Pond and BPR Pond, associated
infrastructure and associated easements and the future operation, maintenance,
repair, replacement and improvement of the FM Pond and BPR Pond and
associated infrastructure. This Agreement shall apply to either or both of the
Ponds only in the event one or both Ponds are built with excess operational
capacity in order to store Developers' additional water rights or in the event the
infrastructure that diverts and delivers the Dedicated Water Rights to either of
the Ponds or that delivers water released from storage in either of the Ponds to
the Fraser River or its tributaries is used by both Developers and Fraser.
D. In addition, the Annexation Agreement provides that BPP and BPD
may use the Dedicated Water Rights for snowmaking and irrigation purposes on
Byers Peak Ranch under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the above recitals and
the mutual covenants and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
I. Limits Of Agreement. This Agreement does not go into effect with
respect to any pond unless and until such pond is dedicated to Fraser as
Dedicated Storage and the water rights, or portions of the water rights to be
stored in the pond, are conveyed to Fraser as provided in the Annexation
Agreement. The Annexation Agreement requires the Developer to construct and
dedicate the Ponds to Fraser within specific time periods. This Agreement will
not apply to any ponds otherwise constructed and used on Byers Peak Ranch or
Grand Park property until such ponds are dedicated to Fraser as Dedicated
Storage. This Agreement shall be effective only if there is excess capacity in the
Dedicated Storage such that both Fraser's storage rights and Developers' storage
rights are stored in the same facility. If there is no such excess capacity, then this
Agreement does not apply to the Ponds, but only to ditches or pipelines that
convey water for both Fraser and Developers, even if stored separately.
2. Excess Pond Capacities. The parties agree that the Ponds may be
built with operational capacities greater than those necessary to store the 60 acre-
feet of Dedicated Water Rights as provided herein and in the Annexation
Agreement. Such excess capacities may be used exclusively by Developers to
store its decreed storage water rights, for storm water detention, or for such other
appropriate water uses that Developers may require. Any such excess capacities
shall be subject to the following terms and conditions:
a. FM Pond. As noted above, the Annexation Agreement provides
that Developers have a specific time period within which it may build the FM
Pond and dedicate it to Fraser. After the FM Pond is constructed and dedicated
to Fraser, then the first water available for diversion in priority at the headgates
of the ditches or other water conveyance facilities used to fill the FM Pond shall
first be diverted, transported and placed into the FM Pond for storage for
Fraser's sole benefit. Once Fraser's Dedicated Water Rights of 25 acre feet of
2
operational storage water allocated to the FM Pond have been stored in such
pond, Developers shall have the right to the next water available in priority to
divert, transport and store in the excess capacity of the FM Pond, if any.
b. BPR Pond. As noted above, the Annexation Agreement provides
that Developers have a specific time period within which it may build the BPR
Pond and dedicate it to Fraser. Developers contemplate building storage at
Byers Peak Ranch before such dedication is required. Until such time as the
BPR Pond is dedicated to Fraser pursuant to the Annexation Agreement, Fraser
has no rights to any diversions or storage that Developers may build on the Byers
Peak Ranch property. Upon Developers' dedication of the BPR Pond to Fraser,
the following provisions for operations and sharing the BPR Pond and associated
facilities shall be effective.
C. First Storage to Town. After Developers dedicate the Ponds to
Fraser, the first quantities of operational storage water stored in the Ponds shall
be the amount of Dedicated Water Rights, and Fraser shall have the right to use
the Dedicated Water Rights stored in the Ponds with priority over any other
water stored in the Ponds by and for Developers' use. Only after Fraser has
diverted, transported and stored its Dedicated Water Rights in the Ponds, shall
Developers have the right to the next water available in priority to divert,
transport and store in the excess capacity of the Ponds, if any, or in any other
ponds contemplated by this Agreement. If there is water in priority to refill the
Ponds, the Ponds will be refilled consistent with the decrees. Any such refill
shall first be allocated to Fraser's portion of the storage in the Pond.
Appropriate accounting forms that reflect allocation of the water rights and joint
use of facilities consistent with this Agreement will be developed and agreed to
by the parties.
d. No Adverse Effect. The right of Developers to use excess
capacities in the Ponds shall have no adverse impact on Fraser's Dedicated Water
Rights or its use of the same for all decreed purposes. The use of excess
capacities in the Ponds shall have no adverse impact on the water quality of the
Dedicated Water Rights that is being released for augmentation or other decreed
purposes to the Fraser River or its tributaries.
e. No Fee. Except as specifically set forth herein or in the Annexation
Agreement, Developers shall have no obligation to pay any fee to Fraser for the
use of the excess capacity of the Ponds. Nor shall any fee for use be required
prior to dedication of the Ponds to Fraser.
f. At the beginning of each operational season, beginning from April
1 to March 31 of each year, Developers agree to provide notice in writing to
Fraser of Developers' requirements for use of any excess capacity in the Ponds
and Fraser shall operate the excess capacities consistent with such requirements
unless advised in writing otherwise.
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3. Priority of Storage of Water in BPR Pond. The parties understand
that BPP and BPD may develop other storage ponds on the Byers Peak Ranch
property other than the Dedicated Storage. In such event, only after the BPR
Pond has been dedicated to Fraser, then the first water available for diversion in
priority at the headgates of the ditches or other water conveyance facility shall
be used to fill Fraser's 35 acre feet of storage. The water used to fill Fraser's 35
acre feet of storage shall be diverted, transported and placed into the BPR Pond
under the water rights decreed in Case No. IOCW309 (Water Div. 5) as allocated
to the BPR Pond, prior to Developers' diversion, transportation and storage of
any of its water rights decreed in Case No. IOCW309 which may be used to fill
additional capacity at the BPR Pond or any other pond on the Byers Peak Ranch
property. This priority of storage is limited to the water rights in Case No.
IOCW309, and does not impact any water rights delivered by the same ditches
that are owned by either Fraser or Developers.
4. Operation, Maintenance, Repairs, Replacements, and
Improvements.
a. Ponds. Fraser shall be responsible for all costs, use,
operations, maintenance, repairs, replacements, improvements and water court or
agency filings or activities of or associated with the Dedicated Storage and
Dedicated Water Rights stored therein, including the provisions of the decrees in
Case Nos. 83CW362, 05CW287 and IOCW309, as appropriate and as they may
be amended, modified or changed from time to time, and the provisions of any
plan for augmentation decreed by Fraser in the future that includes the portion of
the Dedicated Water Rights and the water rights associated with the Ponds,
unless otherwise agreed upon by the parties in writing. Developers shall be
responsible for all water court or agency filings or activities of or associated
with their water rights stored in the Dedicated Storage, unless otherwise agreed
upon by the parties in writing.
To the extent that any of the Dedicated Storage is designed and
constructed to have excess capacities as provided for herein, Fraser shall remain
responsible for the Dedicated Storage and Dedicated Water Rights stored therein
consistent with the terms and conditions of this Agreement. If the Dedicated
Storage does have excess capacities, the parties shall be jointly responsible for
the costs of all operations, maintenance, repairs, and replacements, and agency
filings or activities in proportion to the amount of storage in acre-feet that each
party controls in the Dedicated Storage with excess capacity only. For example,
if the Developers initially build water storage of 50 acre-feet at Byers Peak
Ranch, then after 35 acre-feet of storage in the BPR Pond is dedicated to Fraser,
then Fraser is responsible for 70% of the operational costs (35/50), and the
Developers are responsible for 30% of such costs.
b. Headgates and Ditches. Developers shall be responsible for
all use, operations, maintenance, repairs, replacements, improvements and all
associated infrastructure relating to the diversion and transmission of water,
4
including the Dedicated Water Rights to the Dedicated Storage in the BPR Pond,
unless otherwise agreed upon by the parties in writing. Each party shall be
responsible for all water court or agency filings or activities of or associated
with their respective water rights stored in the Dedicated Storage, unless
otherwise agreed upon by the parties in writing. Developers may assign all
responsibilities for this work to successor developers, an approved special
district, Fraser, or any other party as the parties to this Agreement may otherwise
agree to in writing.
In the event the headgates, ditches, pipelines, and all associated
infrastructure are shared for the delivery of water to the Dedicated Storage in the
BPR Pond or other storage facilities of Developers, the parties shall be jointly
responsible for the costs of all operations, maintenance, repairs, and
replacements, and agency filings or activities in proportion to the storage in acre-
feet that each party controls. Each party shall be responsible for all water court
or agency filings or activities of or associated with their respective water rights
stored in the Dedicated Storage, unless otherwise agreed upon by the parties in
writing. In the event excess capacity is created in the FM Pond, Developers
shall be responsible for all use, operations, maintenance, repairs, replacements,
improvements and all associated infrastructure relating to the diversion and
transmission of water, including the Dedicated Water Rights to the Dedicated
Storage in the FM Pond, unless otherwise agreed upon by the parties in writing.
Each party shall be responsible for all water court or agency filings or activities
of or associated with their respective water rights stored in the Dedicated
Storage, unless otherwise agreed upon by the parties in writing.
In the event the headgates, ditches, pipelines, and all associated
infrastructure are shared for the delivery of water to the Dedicated Storage in the
FM Pond or other storage facilities of Developers, the parties shall be
responsible for the costs of all operations, maintenance, repairs, and
replacements, and agency filings or activities in proportion to the amount of
excess capacity created by Developers in the subject infrastructure relative to the
amount of Dedicated Water Rights diverted and transmitted therein. In the event
Developers have such responsibilities, they may assign them to Fraser or to any
quasi-governmental entity as the parties may otherwise agree to in writing.
Every effort will be made to jointly coordinate in advance and schedule routine
maintenance and any significant repair, replacement or improvement during
those periods of the year when the parties are not diverting water to fill the
Ponds.
C. Other Infrastructure. Any infrastructure requirements of
Developers that need to be installed with respect to the Ponds or associated
infrastructure in connection with Developer's use of excess capacity in either or
both Ponds shall be installed at the time of the construction of the Ponds. To the
extent that such infrastructure is integral to the infrastructure of the Ponds and
associated infrastructure in connection with the filling, storage, and release of
water in Ponds for Fraser's use, the use, operation, maintenance, repair,
5
replacement and improvement of the same shall be performed by Fraser in
connection with its responsibilities set forth herein. To the extent that such
infrastructure is not so integral to the storage requirements for Fraser or the
operation of the ponds to store water and make releases thereof (for example, if
Developers install pumps for snowmaking or irrigation or both,), then
Developers shall be responsible for such activities for such infrastructure at their
sole cost.
d. Cooperation. Fraser and Developers shall work together in
good faith with regard to the use and operation of the Ponds and associated
infrastructure to fulfill their respective requirements, with the understanding that
the use and operation of the Ponds by Fraser under its decrees shall not be
compromised as a result of the joint use and operation of the Ponds. The parties
agree that each spring the Ponds shall be filled with the Dedicated Water Rights
as soon as practicable, and refilled during any time as allowed by the water right
decrees.
e. Failure to Operate, Maintain, Repair, Replace or Improve or
Emergencies. In the event the Ponds and/or associated infrastructure have excess
capacity and these provisions are applicable and either party fails to
appropriately and timely operate, maintain, repair, replace, or improve the
infrastructure they are responsible for hereunder and the water stored in the
Ponds cannot be used as decreed and otherwise required or the infrastructure may
fall into disrepair and water cannot be delivered for storage or released from
storage, the other party shall give the operating party written notice of the issue
to be addressed. In the event the issue is not addressed by reasonable and
diligent efforts of the noticed party within 24 hours of the receipt of the notice in
the event of some emergency, or ten days under a non-emergency situation, and
the noticed party is not diligently addressing the issue, the other party shall have
the right to access the Ponds and/or infrastructure to address such issue. In the
event an emergency arises with respect to any of the Ponds or associated
infrastructure that threatens the integrity or operation of the same or water
cannot be delivered for storage, stored or released from storage, and to the extent
practical, after making a reasonable effort to give the operating party immediate
notice, the other party may attend to necessary maintenance and repairs
immediately to address the emergency and shall notify the operating party as
soon as possible of the circumstances and action taken. To the extent either
party fails to timely cure the failure as provided herein and the other party does
so as provided herein, such other party shall provide the operating party with a
written statement of its reasonable costs associated with addressing the
immediate issue and operating party shall account for a credit of such amount on
the accounts kept as required hereunder. All communications and coordination
under this paragraph and otherwise pertaining to the operation, maintenance,
repair, improvement, and replacement of the Ponds and/or associated
infrastructure shall be between the designated representatives of the parties as set
forth in Paragraph hereof. The parties acknowledge that as a practical matter,
6
they will coordinate and work together to assess and address any significant
failures to fill the Ponds and to release water from the same as provided herein.
5. Cost Accounting and Billing. Fraser shall maintain a separate
accounting for the Ponds and the expenses incurred in fulfilling its
responsibilities hereunder.
a. FM Pond. Fraser shall maintain a separate account for the
headgates, ditches, pipelines, and associated infrastructure to divert
and transmit the Dedicated Water Rights to the FM Pond to the
extent Developer uses such facilities to fill excess capacity in the
FM Pond or other Developers' ponds.
b. BPR Pond. Developers shall maintain a separate accounting for the
headgates, ditches, pipelines, and associated infrastructure to divert
and transmit the Dedicated Water Rights to the BPR Pond.
c. Joint Costs. Each party shall provide a detailed invoice to the other
party by the twenty-first day of the month following the calendar
month in which costs were incurred that are shared as provided
herein. The billed party shall pay the same within fifteen days after
receipt thereof.
6. Snowmaking and Irrigation Use by BPD of Dedicated Water Rights
Stored in BPR Pond. Fraser hereby grants BPD a right of use to use the
Dedicated Water Rights in the BPR Pond as follows.
a. Snowmaking. After such time as the Developers dedicate the BPR
Pond to Fraser, Developers may use the BPR Pond for snowmaking
purposes on an annual basis subject to the first right of Fraser to meet
its uses, needs and requirements for such water for augmentation,
decreed and other municipal purposes, in Fraser's sole discretion.
BPD shall be responsible for all costs associated with its use of such
portion of the Dedicated Water Rights for snowmaking, and, in
addition, shall pay Fraser a fee of $5.00 an acre foot for such
snowmaking use on an annual basis. The $5.00 fee shall be increased
by $5.00 on the tenth anniversary of the Effective Date and every tenth
anniversary thereafter. In the event Developers convey or otherwise
transfer ownership of the Colorado Adventure Park, at which site the
snowmaking is to occur, to parties that are not owned by or affiliated
with Developers, this fee arrangement shall terminate and thereafter
any water used for such purposes shall be subject to Fraser's normal
raw water fee rate applicable at such time. Such costs shall be
included separately in the cost accounting provided for herein and
shall be the responsibility of BPD.
7
b. Irrigation. After such time as the Developers dedicate the BPR
Pond to Fraser, Developers may use water stored in the BPR Pond for
irrigation of only agricultural lands, open space and/or parks on the
Property on an annual basis subject to the first right of Fraser to meet
its uses, needs and requirements for such water for augmentation,
decreed and other municipal purposes, as determined solely by Fraser.
Such right of irrigation use shall extend for 15 years from the date of
the dedication of the Dedicated Storage for the BPR Pond to Fraser or
until such earlier time as the Byers Peak Ranch property loses its
agricultural designation, or until the parties otherwise agree in writing.
Developers shall be responsible for all costs associated with
Developers use of the Dedicated Water Rights for irrigation. Fraser
shall advise Developers on or before April 15 of each year, how much
water Fraser anticipates Fraser will use and how much water Fraser
anticipates will be available for Developers' irrigation use. To the
extent that Fraser has not used and will not use the amount of water
retained for Fraser's use and to the extent Developers do not use the
entire amount allocated by Fraser to Developers for irrigation use,
such combined amount of water shall be available for snowmaking use
as provided in subparagraph a above.
c. Other Uses. Until such time as the Developers dedicate the Ponds
to Fraser, if physical water storage structures are built and filled on
Developers' property, then those ponds and the related water rights
may be used for any decreed uses by the Developers, at Developers'
cost.
d. Records. Developers shall keep records of Developers use of water
stored in the BPR Pond in a form sufficient to be used to (i) to satisfy
the requirements of the State and Division Engineer's (ii) to support
Fraser's claim of reasonable diligence or to make the water rights
absolute, and (iii) to properly allocate to Developers any and all costs
associated with Developers' use of the water for snowmaking or
irrigation as described in subsections a and b above. Developers shall
provide all records to Fraser at the end of each water year.
7. Miscellaneous Provisions.
a. Representatives. The parties shall each designate a
representative to be the contact for practical and coordinating communications
between the parties in fulfilling their respective rights and responsibilities under
this agreement.
b. Default. In the event of a default on the part of either party
for non-payment of bills, the other party shall provide the defaulting party with
written notice of the default. Upon receiving the notice, the defaulting party
shall have ten days to respond to the other party with a plan to cure the default.
8
Such plan must cure the default within a 30 day period, or in a time frame that
the parties may agree upon in writing. The non-defaulting party may refuse to
deliver water to the defaulting party until such bills are paid.
C. Governing Law. The validity and effect of this Agreement
shall be determined in accordance with the laws of the State of Colorado.
d. Binding Effect. The terms, provisions, covenants,
agreements, restrictions and conditions in this Agreement are intended to be, and
shall be construed as, covenants running with the Dedicated Storage, and
Dedicated Water Rights and shall bind the parties and all subsequent owners of
the applicable portions thereof. The benefit of such terms, provisions,
covenants, agreements, restrictions and conditions shall run to and may be
enforced by the parties hereto and their respective successors, assigns or
transferees.
e. Recording. Within ten days after execution, this
Agreement shall be recorded in the real property records for Grand County,
Colorado.
f. Notices. Any notice or communication required
hereunder between Fraser and Developers must be in writing, and may be given
either personally; overnight by UPS or FedEx; by registered or certified mail,
return receipt requested; by facsimile; or by electronic mail. If given by
registered or certified mail, the same shall be deemed to have been given and
received on the first to occur of (i) actual receipt by any of the addressees
designated below as the party to whom notices are to be sent, or (ii) five days
after a registered or certified letter containing such notice, properly addressed,
with postage prepaid, is deposited in the United States mail. If personally or
overnight delivered, a notice shall be deemed to have been given when delivered
to the party to whom it is addressed. If delivered by facsimile or electronic mail,
a notice shall be deemed to have been given when sent, as long as no delivery
failure message is received by the sending party. Any party hereto may at any
time, by giving written notice to the other party hereto as provided herein,
designate any other address in substitution of the address to which such notice or
communication shall be given. Such notices or communications shall be given to
the parties at their addresses set forth below:
If to Fraser: Town of Fraser
153 Fraser Avenue
P.O. Box 370
Fraser, CO 80442
Attention: Manager
9
Email: jdurbingtown.fraser.co.us
with a copy to: Christopher L. Thorne, Esq.
Kylie J. Crandall, Esq.
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, CO 80202
Email: cthorneghollandhart.com
Email: kicrandallkhollandhart.com
If to Developers: Grand Park Development, LLC
Byers Peak Properties, LLC
Byers Peak Downhill Adventures,
LLC
P.O. Box 30
Winter Park, CO 80482
Attention: C. Clark Lipscomb
Email: clark @cstoneholdings.com
with a copy to: Ramsey L. Kropf, Esq.
Patrick, Miller, Kropf& Noto, P.C.
229 Midland Avenue
Basalt, CO 81621
Email: Kropfkwaterlaw.com
g. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid, illegal or
unenforceable, it shall not affect or impair the validity, legality or enforceability
of any other provision of this Agreement, or the applicability of such provision
to persons or circumstances other than those to which it is held invalid or
unenforceable, and each provision of this Agreement shall be valid and enforced
to the fullest extent permitted by law.
h. Counterparts. It is hereby mutually agreed upon by the
parties to this agreement that facsimile and electronic communication and/or
acceptance shall be an acceptable and binding form of communication. This
Agreement may be executed in several counterparts and, as so executed, shall
constitute one agreement, binding on all the parties as though all the parties have
signed the signature pages. All signatures shall be binding as of the date of
signature on facsimile or electronic communication.
[Signature Pages to Follow]
10
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
DEVELOPERS:
BYERS PEAK PROPERTIES, LLC, a
Colorado limited liability company
By:
Name: C.Clark Lipscomb
Title: President
BYERS PEAK DOWNHILL
ADVENTURES, LLC, a Colorado
limited liability company
By:
Name: C.Clark Lipscomb
Title: President
GRAND PARK DEVELOPMENT,
LLC, a Colorado limited liability
company
By:
Name: C.Clark Lipscomb
Title: President
11
FRASER:
TOWN OF FRASER, COLORADO, a
home rule municipality,
By:
Mayor of the Town of Fraser,
Colorado
ATTEST:
Town Clerk
12
STATE OF )
SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
_ _ 2013, by as
of Byers Peak Properties, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF )
SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by as
of Byers Peak Downhill Adventures, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF )
SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by as
of Grand Park Development, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
13
STATE OF COLORADO )
) SS.
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me this day of
2013, by Mayor, Town of Fraser,
Colorado and as Clerk of the Town of Fraser, Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
6062470_6
14
I
INDEX TO THE BYERS PEAK ANNEXATION AND DEVELOPMENT
AGREEMENT AND ASSOCIATED DOCUMENTS E
'E
1. Petition for Annexation, Notice and Joinder, and Annexation Map
a. Resolution of approval {
I
b. Ordinance approving the annexation
2. Byers Peak Ranch Annexation and Development Agreement ("Annexation
Agreement") f
a. Ordinance approving the Annexation Agreement
3. Exhibits the Annexation Agreement and Related Ordinances or Exhibits
a. Legal Description of the Property
b. Byers Peak Ranch Planned Development District Plan With
Conditions ("PDD Plan")
i. Ordinance Approving the PDD Plan
i
c. Easement Grant and Agreement for Byers Peak Ranch
Augmentation Pond and Associated Facilities and Infrastructure
with Exhibits A [Exhibit B will be created upon construction of the
pond.]
d. Easement Grant and Agreement for Forest Meadows Augmentation
Pond and Associated facilities and Infrastructure with Exhibit A
[Exhibit B will be created upon construction of the pond.]
e. Map of Grand Park Ponds
f. Easement Grant and First Right of Use Agreement for the Grand
Park Ponds and Associated Facilities and Infrastructure [Pursuant
to discussions late last weep, this Agreement is again part of the
Town's security for construction of the BPR and FM augmentation
ponds. Attached is the most recent draft received from the
Developer, but is subject of ongoing negotiations.]
g. Reservoir and Ditch Operating Agreement
I
I
i
I
II
h. Legal Description of the Municipal Parcel [This map is being
prepared by the surveyor and shall be provided by Developer once
it has been completed.] i
i
i. Subdivision Exemption Application (to be provided with
map)
ii. Resolution approving the Subdivision Exemption Parcel
4. Additional Documents Associated with the Annexation Agreement
a. Service Plan Amendments for the West Mountain Metropolitan
District
f
i. Resolution approving the same j
b. Development Permit for Colorado Adventure Park
I
i. Resolution approving the same
c. Grading and Excavation Operations Plan
i. ResoIution approving the same
d. Non-Opposition Letter Agreement
I
i
I
I
�I
I
�I
I
I
i
Exhibit A to the Byers Peak Ranch Annexation and Development Agreement
EX�IT A
PEMON MR AMMX&U� ON
Leo Dwaiption ofPnpody
A parool of W4 bdng�ov=mat Lot 3, Govemmmt Lot 4 EX09FT the Wmarly 440&ct
thmw4 vA a poidon of the W111h 1/2 of Section 19,and ft N3 114 of Seotion 30,all in
Tovwskip I Soudi,Rap 75 WV wt of tho M PM.,Gmd Cou*,colowdo,more psafoWarly
MGMINO at the BMWMst Comer of said Soodou 19 md,tb NorMmt Corner of said
SWUM 30,43"Iron pipe Vidia 3-%1'bzasfi cap sped UNGLO 1933;
Thonzo SOU&00-34113- East along the eaft-ly lino,of sdd Swfl=30 a disbuce of 1,31129
hot-to W North Si xk"Comer ofSedlon 29 andWd Section 30,wince a.leaning 2,,
Jwn PIPO I foot above and vdOi a 2-%"bmss oap Wamped"1.811 12479"bests North
31°28'41"FMt 0.51 feet,an whMM the Ent QuWa-Comdr of said geotion 30,a found
2-V" bmw cap souped TgcLo 193311 bw= S" 00001311 East a disumw of
1,317.29 ft;
T1101100 Worth 80055'10" West along the North gb*math-line of said Section 30 a 4100co. of
2,62?M feet to the Norik-Conter Weenth Corner of sdd Section 30, a sot 95,mbar
with a 3-Al'almninum,oftp stamped %9, f/2466911,w the Coutor Quarwr Cormr of
said SeodanM, a'fbmd #6 alwninum rod w1di. u 2-1 11 brass dap'stamped IDWD LS
#16398,2001"boas 80u&00'561311 Bost a distance of 1,330-77fW,
Th=oo MA 00,56,131,West along the Noxth-South Ceftrilm of said Simon 30 a distoce of
1,3311,77 feet W the SOA QWft Comer of said S=Uou 19,4 sou ft re-ba with a 3-V4,,
Wuminwn MP MmPad '18 #246691t re-afftblishad,por monument record shoot 00s
preparod by Thftm M Canxotpr,LOff 16398,dated 0/3011990,.
Thonm Soth 99112211211 West olog the sonowly um of said S"m 19 a didwoo of 2,181.82
Feet to a set#5 mbar with 4 V104i top stainpod%8 2069",whonoo a 1-1/a,atuminum
cap stomped '1 S# 1141511 bow Nwth 52*171061 Bit 1,63 foot, also w'hma ft
Southwest Comer of said 9040a 19 14m South 89112211211 West 0,distmoo of 440.00
&d to a found 211 Plyanizod pipe whh ft M"'huss cap otampd"USOLO 1933",
Thence North.00111410211 West a distance of 1,322.19 fwt to a1buid I-W ofluminwn mp stampod
'190 1141511,
Thonoo Nadi 540SW4911 Rest adistmeo of 1,167.79 feet;
ThctaOe W0911 00-091 V WMt a d1ohmoo of 684.98 hot to the hor(berly right of way line ofCp,.
73 0 MOW in:%Ok 0,PAp IN
'fence North 89"5014911 Hast,along said right of way a distance of 1,296,54 fbot w the Westerly
Coiponto,Limit oft Town of Froor,
7Q2$J 6Q llxWb!tA
Thence Houlb 00DIV50"EW along said.C01POTAtt Unit a distance of 29.94 00
f.
Thence Nmilt 89048'07" Egg along said 1k&-west,CenterUm j)f swtion 19 fk divanoo of
IX3.12*et lo a sot#5 ra-bar w1th A Platio OOP stampe4`LS 24669" on tho wc*rly
light Of WUY HUO Of the UWOU Pacific RAm ad,whenm the Ew Qumlar Cmm d said
Swdon 19,a found 2"pipe in oonmte VAth a 2-%,,iduminum 0ap,bl�tm XWM 89"4$'0711
Eft it dbbm of 1,266.48
TIMM dang s d 4&of tho followingthree(3)cranes.
I. South 14040V511 ftst 0(flfftam of 999.32 feet to upoiat of eurvaMva,U at.#5 rp
,-bW I
vdth a Plmdc OUP SUmped'S8 24669111,
2. Along the are of u curve to the left b4ft a Q=tml angle of 59'21'29".4 Wius of
816-78 ft-Wd m 4m IMWM a 946.18�t(ohord be=South 4411205V Fast,808.84
feet),a act#5 re bar with 4 pjagfl o cap:S(pAp0d18 24669";
3. South 7400113411 rml a distaum of 415.27 fee tp a POW OA bbo easterly right of way
he otCR-72 as ywar&a in Boo k 105,Page 27840 .
Thmae lew4ng said U'don P Railroad right of way South 04138138"West and along Wd
eaftly right DfWAY line of CR-72 a distance of'98,0 I reet,,
ThOA GO NOA 891381521 Welt lean lUg mdd"SWdY right of vmy a diamoo of 40.11 Amat to ffm
wooWdy right of w,ay Me of laid Cp,-72,.
Them NoA 04"38'3811&at along mid westaly right o
f way he a distanm of 97,13 A*t to a
point of non-tawnt eurvature on The southerly d& of way line of Fmwr Valley
Pakway(CR-721)as nuorded In Book 450,Page 480,
Thmm leaving said westerly right of way and along sold muftrlY light of way and along the
am of a Com to the:right b4VIOR a em ml angle of 49128"57" amdius of 244.97 kat,and
an m length 0 U11.56 W(chord be=South 65135159"Wed,205.05 fm);
Thunae 80uth 00120;101 Wed ImmW sad Nouthaly right of vmy a dkW"of 11.01 h04
Thence*4 99995211 WOd 4 dhbaoo of 619,10 ft
Thence South 00106105" R"t 4 dW"00 Of 900,00 Ad to a set#5 =-bar with a plastic gap
ftnpW"LS 2466911,whom a found 2-1A" Ima pipe bean Nonh 2503112911 West a
diftum of 5.46 rout;-
Then¢
o Routh-8903714611 East along the southorly IWz of said SM60A 19 a distance of 899.54 fbd
to the POINT OF UeRqNmo.
Containfou 12,860,892 a e f6d,or 295,429 aom,more or lean.
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TOWN OF FRASER, COLORADO
ORDINANCE NO. 407
SERIES 2013
AN ORDINANCE ANNEXING TO THE TOWN OF FRASER, COUNTY OF GRAND,
STATE OF COLORADO,THE BYERS PEAK RANCH PROPERTY
WHEREAS, pursuant to C.R.S. § 31-12-107(1)(a), a petition for annexation ("Annexation
Petition"), dated June 11, 2007, amended November 26, 2007, was filed by Byers Peak
Properties, LLC ("BPP") with the Town Clerk of the Town of Fraser, Colorado (the "Town")
seeking to annex approximately 295 acres of unincorporated territory contiguous to the Town in
Grand County, Colorado, commonly known Byers Peak Ranch (the "Property"), as more
particularly described in the legal description attached hereto and incorporated herein as Exhibit
A, and was referred from the Clerk to the Town's Board of Trustees (the "Board");
WHEREAS, by Resolution No. 11-01-07 dated November 28, 2007 the Board found and
determined that the Annexation Petition was in substantial compliance with the statutory
requirements in accordance with the requirements of C.R.S. § 31-12-107, and set a public
hearing;
WHEREAS, on February 6, 2008, the Board conducted a public hearing at which it adopted
Resolution No. 02-01-08 in which it set forth its findings of fact and its conclusions on the
Annexation Petition in accordance with the requirements of C.R.S. §31-12-110 and other
applicable provisions of the Municipal Annexation Act of 1965, and deferred action on the
annexation of such Property until the terms of an annexation agreement were negotiated, or until
the Board otherwise determined to act upon such proposed annexation;
WHEREAS, on February 27, 2012, Byers Peak Downhill Adventures, LLC ("BPD") filed a
Notice and Joinder (the "Joinder") with the Town to join the Annexation Petition as a landowner
after portions of the Property subject to the Annexation Petition had been conveyed by BPP to
BPD in 2009;
WHEREAS, BPP and BPD (together, the "Developers") own one hundred percent of the
Property that is the subject of the Annexation Petition;
WHEREAS, the Board had an annexation impact report prepared and filed in accordance with
the provisions of C.R.S. §31-12-108.5;
WHEREAS, the Town and Developers have reached an agreement on the terms and conditions
of the Byers Peak Ranch Annexation and Development Agreement dated [ ],
pertaining to the annexation of the Property;
WHEREAS, the Board provided notice of a public hearing in accordance with C.R.S. 31-12-108
and held such public hearing commencing on February 6, 2013, which date was not less than 30
days nor more than 60 days after the effective date of the resolution setting the hearing. The
public hearing was continued in accordance with Section 31-12-108(3), C.R.S. to obtain
additional evidence and testimony from the applicant and the public. The public hearing was
conducted on the following dates and included at least one hour of testimony on each such date:
February 6, 2013; March 6, 2013; May 5, 2013 and May 29, 2013;
WHEREAS, on May 29, 2013, the Board adopted Resolution No. - -13 in which it set forth
its findings of fact and its conclusions on the Annexation Petition as modified by the Joinder in
accordance with the requirements of C.R.S. §31-12-110 and other applicable provisions of the
Municipal Annexation Act of 1965, and resolving that such resolution be confirmed and adopted
by ordinance and that the Property shall be annexed to the Town of Fraser, Colorado by
ordinance in accordance with C.R.S. § 31-12-107(1)(g) and 111;
WHEREAS, the Board determines that it is in the best interest of the Town to annex the
Property to the Town; and
WHEREAS, the Board desires to annex the Property to the Town by ordinance in accordance
with C.R.S. §§ 31-12-107(1)(g) and 111;
NOW THEREFORE, THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,
COLORADO ORDAINS:
Section 1. Authorization of Annexation. The Developers are the owners of one hundred percent
of the Property that is the subject of the Annexation Petition and the Developers have petitioned
for annexation to Town; the requirements of C.R.S. §§ 31-12-104 and 105 have been met; an
election is not required under C.R.S. § 31-12-107(2); and no additional terms and conditions are
to be imposed. Therefore, the Property be and hereby is annexed to the Town and made a part of
the Town upon the effective date of this Ordinance.
Section 2. The annexation shall take effect in accordance with the Municipal Annexation Act of
1965, as amended, and the Town's Municipal Charter and Municipal Code, as amended.
Section 3. That, in annexing the Property to the Town, the Town does not assume any obligation
respecting the construction of water mains, sewer lines, gas mains, electric service lines, or any
other sewer or utilities, or streets,bridges, parkways, other public ways or other public amenities,
improvements or facilities in connection with the Property hereby annexed except as provided by
the ordinances of the Town and the terms and conditions of the Annexation Agreement entered
into between the Developers and the Town.
Section 4. Required Filings, Direction to Town Clerk. As required by C.R.S. § 31-12-113(2),
the Town Clerk is directed as follows:
1. File one copy of the annexation map with the original of this Annexation Ordinance in
the office of the Town Clerk; and
2. File for recording three certified copies of this Annexation Ordinance and map of the
area annexed containing a legal description of such area with the County Clerk and
Recorder of Grand County, Colorado.
Section 5. Conditions. This Annexation Ordinance and any approval herein is conditioned upon
the Developers satisfying the following conditions prior to the effective date of this Ordinance:
a. Obtaining and delivering to the Town Clerk an original or counterpart copies of the
Annexation Agreement duly signed and acknowledged by any and all required parties within ten
days of the date of this Ordinance, and
b. Paying to the Town all fees and costs associated with or related to the annexation
process, as provided to the Developers by the Town.
If these conditions are not fully satisfied prior to the effective date of this Ordinance, then
the Board may, at its sole option, rescind or repeal this Ordinance and declare said/or Annexation
Petition null and void.
Section 6. Severability. If any section, subsection, sentence, clause or phrase of this Annexation
Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect
the validity or constitutionality of the remaining portions of this Annexation Ordinance. The
Town hereby declares that it would have adopted this Annexation Ordinance, and each section,
subsection, clause or phrase thereof, irrespective of the fact that anyone or more sections,
subsections, sentences, clauses and phrases thereof be declared invalid or unconstitutional.
READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF
TRUSTEES OF THE TOWN OF FRASER, COLORADO THIS day of ,
2013.
Votes in favor:
Votes opposed:
Votes abstained:
Votes absent:
BOARD OF TRUSTEES OF THE
TOWN OF FRASER, COLORADO
BY:
Peggy Smith, Town Mayor
ATTEST:
BY:
Lu Berger, Town Clerk
Published in the on ) 2013.
6093650_1
TOWN OF FRASER, COLORADO
ORDINANCE NO. 408
SERIES 2013
AN ORDINANCE APPROVING THE BYERS PEAK RANCH ANNEXATION AND
DEVELOPMENT AGREEMENT; AUTHORIZING THE MAYOR OF THE TOWN OF
FRASER, COLORADO TO SIGN THE BYERS PEAK RANCH ANNEXATION AND
DEVELOPMENT AGREEMENT; AND APPROVING THE CREATION OF VESTED
PROPERTY RIGHTS
WHEREAS, by Ordinance No. , Series 2013, the Town of Fraser, Colorado, a municipal
corporation of the State of Colorado (the "Town"), has annexed to the Town approximately 295
acres of unincorporated land contiguous to the Town in Grand County, Colorado commonly
known as the Byers Peak Ranch (the "Property")in accordance with the applicable provisions of
the Municipal Annexation Act of 1965 and the Town's Municipal Charter and Municipal Code;
WHEREAS, in connection with the annexation of the Property, the Town has reached an
agreement with the owners of 100% the Property, Byers Peak Properties, LLC and Byers Peak
Downhill Adventures, LLC (together, the "Developer"), on the terms and conditions of the Byers
Peak Ranch Annexation and Development Agreement, dated (the "Annexation
Agreement"), a copy of which is attached hereto and incorporated herein, pertaining to the
annexation of the Property described above;
WHEREAS, the Town and the Developer intend for the Annexation Agreement to establish
vested property rights of the Developer to undertake and complete development of the Property
as set forth in the Annexation Agreement; and
WHEREAS, the Board provided notice of a public hearing in accordance with C.R.S. 31-12-108
and held such public hearing commencing on February 6, 2013, which date was not less than 30
days nor more than 60 days after the effective date of the resolution setting the hearing. The
public hearing was continued in accordance with Section 31-12-108(3), C.R.S. to obtain
additional evidence and testimony from the applicant and the public. The public hearing was
conducted on the following dates and included at least one hour of testimony on each such date:
February 6, 2013; March 6, 2013; May 5, 2013 and May 29, 2013;.
WHEREAS, the Town's Municipal Charter and Municipal Code, and applicable provision of
the Colorado Revised Statutes authorize the Board of Trustees of the Town (the "Board") to
enter into such agreements and create such vested property rights.
NOW THEREFORE, THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,
COLORADO ORDAINS:
Section 1. Approval and Execution of the Annexation Agreement. The Annexation Agreement
and all easements and related agreements, including any exhibits to the Annexation Agreement
are approved and the Mayor of the Town is hereby authorized to sign the Annexation Agreement
and all easements and related agreements, including any exhibits to the Annexation Agreement.
Section 2. Vested Rights. The Annexation Agreement shall constitute an approved "site specific
development plan" as defined in the Vested Property Rights Statute, C.R.S. § 24-68-101 et seq.
Without limiting the generality of the foregoing, the Developers shall have vested property rights
to undertake and complete development and use of the Property as set forth in the Annexation
Agreement, subject to compliance with all applicable provisions of the Town's Municipal Code
and subject to the provisions of any final development plan, as approved by the Town. The
vested property rights so established shall be and remain vested for the term of 35 years pursuant
to the provisions of the Annexation Agreement and C.R.S. §24-68-104.
APPROVAL OF THE ANNEXATION AGREEMENT CONSTITUTES A VESTED
PROPERTY RIGHT PURSUANT TO SECTION 24-68-103, C.R.S.,AS AMENDED.
Section 3. Required Publication, Directions to Town Clerk. As required by C.R.S. § 24-68-
103(c), the Town Clerk is directed to publish a notice advising the general public of the site
specific development plan approval and creation of vested property right in the Annexation
Agreement no later than 14 days after the approval of the Annexation Agreement by this
Ordinance.
Section 4. Conditions. This Ordinance and any approval or property right created herein is
conditioned upon the Developer satisfying the following conditions prior to the effective date of
this Ordinance:
a. Obtaining and delivering to the Town Clerk an original or counterpart copies of the
Annexation Agreement duly signed and acknowledged by any and all required parties, and
b. Paying to the Town all fees and costs associated with or related to the annexation
process, as provided to the Developer by the Town.
If these conditions are not fully satisfied prior to the effective date of this Ordinance, then
the Board may, at its sole option, rescind or repeal this Ordinance and declare said/or Annexation
Petition null and void.
Section 5. Severabilily. If any section, subsection, sentence, clause or phrase of this
Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this Ordinance. The Town
hereby declares that it would have adopted this Ordinance, and each section, subsection,
clause or phrase thereof, irrespective of the fact that anyone or more sections, subsections,
sentences, clauses and phrases thereof be declared invalid or unconstitutional.
READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF
TRUSTEES OF THE TOWN OF FRASER, COLORADO THIS day of
2013.
Votes in favor:
Votes opposed:
Votes abstained:
Votes absent:
BOARD OF TRUSTEES OF THE
TOWN OF FRASER, COLORADO
BY:
Peggy Smith, Town Mayor
ATTEST:
BY:
Lu Berger, Town Clerk
Published in the on ) 2013.
6011622_1
TOWN OF FRASER
ORDINANCE NO. 409
Series 2013
AN ORDINANCE ZONING NEWLY ANNEXED PROPERTY; AMENDING THE
LOCAL ZONING MAP OF THE TOWN OF FRASER; AND APPROVING THE BYERS
PEAK RANCH PLANNED DEVELOPMENT DISTRICT PLAN
WHEREAS, by Ordinance No. , Series 2013, the Town of Fraser, Colorado (the "Town")
annexed to the Town approximately 295 acres of unincorporated land contiguous to the Town in
Grand County, Colorado commonly known as the Byers Peak Ranch property (the "Property")in
accordance with the applicable provisions of the Municipal Annexation Act of 1965 and the
Fraser Municipal Charter and Municipal Code;
WHEREAS, pursuant to C.R.S. § 31-12-115, it is necessary to zone the Property;
WHEREAS, the owners of 100% of the Property, Byers Peak Properties, LLC and Byers Peak
Downhill Adventures, LLC, (together, the "Developer"), have requested the official zoning map
of the Town be amended to zone the Property "Planned Development District";
WHEREAS, the Developer has further proposed that the Property be made subject to the Byers
Peak Ranch Development Planned Development District Plan (the "PDD Plan");
WHEREAS, at public hearings before the Town's Planning Commission for the zoning
amendment and PDD Plan held between March 23, 2011 and May 25, 2011, and after review of
presented evidence, testimony, exhibits, review of the Town's Master Plan or Comprehensive
Plan (hereinafter referred to as the "Master Plan"), comments of public officials, comments from
the public and recommendation from Town Staff, the Town Planning Commission, by
resolution, approved its recommendation for approval of the PDD Plan to the Board of Trustees
of the Town of Fraser(the "Board"); and,
WHEREAS, the Board held public hearings pursuant to the notice of the public hearing,
properly published, as required by the Town's Municipal Code and C.R.S. §31-23-304, for the
the zoning amendment and the PDD Plan between February 6, 2013 and May 29, 2013;
WHEREAS, at such public hearings, after consideration of the application, the relevant support
materials, and findings and recommendations of the Planning Commission, Town Staff and
information given at the public hearings, and after determining compliance with the evaluation
criteria listed herein and other standards and criteria of the Town's Municipal Code, the Board
hereby finds as follows:
1. The proposed zoning for the Property and the PDD Plan are in substantial conformance
with the Town's Master Plan, as amended;
2. The PDD Plan is consistent with the efficient development and preservation of the
Property, does not affect in a substantially adverse manner either the enjoyment of land
abutting upon or across the street from the Property or the public interest, and is not
granted solely to confer a benefit upon any person;
3. The PDD Plan is in the best interest of the Town; will promote good design,
enhancement of environmental amenities and increased efficiency of public and private
services; and will ensure integrated planning goals and objectives of the Town's Master
Plan while allowing greater flexibility and innovations in development and site designs
that is typically possible under the conventional zone district regulations, while providing
the Town with assurances that the project will retain the character now envisioned;
4. The PDD Plan, while preliminary and general in nature, is consistent with the
following additional considerations prescribed by the Town's Municipal Code:
a. Constitutes a unique and truly innovative project which is represented by the
Developer to be constructed within a reasonable period of time in relation to the
project's size and scope and which will be of economic benefit to the Town,
thereby qualifying the project under this and other criteria for review under the
Town's PD regulations;
b. Provides for and improves existing commercial, residential, industrial and
education facilities within the community;
c. Ensures that the provisions of the zoning laws which direct the uniform
treatment of dwelling type,bulk, density and open space within other zoning
districts will not be applied in a manner which would distort the objectives of the
Fraser Zoning Ordinance;
d. Allows innovations in residential, commercial, and industrial development and
renewal so that the growing demands of the population may be met by greater
variety and types, design and layout of buildings and the conservation and more
efficient use of open space ancillary to said buildings;
e. Allows an efficient use of land and of public and private services to reflect
changes in the technology of land development so that resulting economies may
inure to the benefit of the community as a whole;
f. Reduces energy consumption and demand;
g. Lessens the burden of traffic on streets and highways by encouraging land uses
which decrease trip length and encourage the use of public transit;
h. Conserves the value of the land and preserves environmental quality;
i. Provides a technique of development which can relate the type, design and
layout of residential, commercial, and industrial development to the particular
site, thereby encouraging preservation of the site's natural characteristics;
j. Encourages integrated community planning and development in order to
achieve the above purposes; and
5. It appearing to the Board that it would be in the best interests of the Town to zone this
Property and approve the PDD Plan as provided in this Ordinance.
NOW THEREFORE, THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,
COLORADO ORDAINS:
Section 1. Approval of Zoning. The Official Zoning Map of the Town is hereby amended by
zoning the Property in accordance with the provision of the PDD Plan for the Byers Peak Ranch
Development approved pursuant to this Ordinance. Such amendments shall include an outline of
the geographical area of the Planned Development District and the PD #, as defined below.
Section 2. Approval of PDD Plan. The PDD Plan for the Property is hereby approved. The
PDD Plan consists of 8 plan sheets, the cover sheet of which bears the Board's approval as of the
date of this Ordinance. The PDD Plan shall constitute a zone district subject to the contents of
the PDD Plan as Planned Development District No. (PD # ).
Section 3. Conditions. This Ordinance is conditioned upon the approval by the Town Board of
Ordinance No. , Series 2013, approving the annexation of the Property to the Town.
Section 4. Severability. If any section, subsection, sentence, clause or phrase of this Ordinance
is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this Ordinance. The Town hereby
declares that it would have adopted this Ordinance, and each section, subsection, clause or
phrase thereof, irrespective of the fact that anyone or more sections, subsections, sentences,
clauses and phrases thereof be declared invalid or unconstitutional.
READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF
TRUSTEES OF THE TOWN OF FRASER, COLORADO THIS day of ,
2013.
Votes in favor:
Votes opposed:
Votes abstained:
Votes absent:
BOARD OF TRUSTEES OF THE
TOWN OF FRASER, COLORADO
BY:
Peggy Smith,Mayor
ATTEST:
BY:
Lu Berger, Town Clerk
Published in the on , 2013.
6011621_1
TOWN OF FRASER, COLORADO
RESOLUTION NO. , 2013
A RESOLUTION OF THE TOWN OF FRASER BOARD OF TRUSTEES
CONCERNING FINDINGS FOR PETITION FOR ANNEXATION OF THE BYERS
PEAK RANCH PROPERTY
WHEREAS, pursuant to C.R.S. § 31-12-107(1)(a), a petition for annexation ("Annexation
Petition"), dated June 11, 2007, amended November 26, 2007, was filed by Byers Peak
Properties, LLC ("BPP") with the Town Clerk of the Town of Fraser, Colorado (the "Town")
seeking to annex approximately 295 acres of unincorporated territory contiguous to the Town in
Grand County, Colorado, commonly known Byers Peak Ranch (the "Property"), as more
particularly described in the legal description attached hereto and incorporated herein as Exhibit
A, and was referred from the Clerk to the Town's Board of Trustees (the`Board");
WHEREAS, by Resolution No. 11-01-07 dated November 28, 2007 the Board found and
determined that the Annexation Petition was in substantial compliance with the statutory
requirements in accordance with the requirements of C.R.S. § 31-12-107, and set a public
hearing.
WHEREAS, on February 6, 2008, the Board conducted a public hearing at which it adopted
Resolution No. 02-01-08 in which it set forth its findings of fact and its conclusions on the
Annexation Petition in accordance with the requirements of C.R.S. §31-12-110 and other
applicable provisions of the Municipal Annexation Act of 1965, and deferred action on the
annexation of such Property until the terms of an annexation agreement were negotiated, or until
the Board otherwise determined to act upon such proposed annexation;
WHEREAS, on February 27, 2012, Byers Peak Downhill Adventures, LLC ("BPD") filed a
Notice and Joinder (the "Joinder") with the Town to join the Annexation Petition as a landowner
after portions of the Property subject to the Annexation Petition had been conveyed by BPP to
BPD in 2009;
WHEREAS, the Board provided notice of a public hearing in accordance with C.R.S. § 31-12-
108 and held such public hearing commencing on February 6, 2013,which date was not less than
30 days nor more than 60 days after the effective date of the resolution setting the hearing. The
public hearing was continued in accordance with C.R.S. § 31-12-108(3), to obtain additional
evidence and testimony from the applicant and the public. The public hearing was conducted on
the following dates and included at least one hour of testimony on each such date: February 6,
2013; March 6, 2013; May 5, 2013 and May 29, 2013;
WHEREAS, BPP and BPD (together, the "Developers") own one hundred percent of the
Property that is the subject of the Annexation Petition;
WHEREAS, the Board had an annexation impact report prepared and filed in accordance with
the provisions of C.R.S. §31-12-108.5;
WHEREAS, the Town and Developers have reached an agreement on the terms and conditions
of the Byers Peak Ranch Annexation and Development Agreement dated [ ],
pertaining to the annexation of the Property;
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN
OF FRASER, COLORADO:
Section 1. Findings of Fact. The Board has determined that the requirements of the applicable
parts of C.R.S. §§ 31-12-104 and 105 have been met, including but not limited to the following
findings of fact.
1. Not less than one-sixth of the perimeter of Property is contiguous with the Town.
2. A community of interest exists between the area proposed to be annexed and the
Town,based on contiguity between the Town and the Property.
3. The area is urban or will be urbanized in the near future.
4. The area is integrated with or is capable of being integrated with the Town.
5. No land held in identical ownership has been divided into separate parts of parcels
without the written consent of the landowners thereof.
6. No land comprising twenty acres or more with a valuation for assessment in excess of
two hundred thousand dollars for ad valorem tax purposes for the year next preceding
the annexation has been included without written consent of the landowners.
7. No annexation proceedings concerning the area proposed to be annexed have been
commenced by another municipality.
8. This proposed annexation will not result in the detachment of the area proposed to be
annexed from the school district.
9. No part of the Property extends the existing Town boundaries more than three miles
in any direction from the Town in any one year.
10.No additional terms and conditions are being imposed by the Town upon the Property
in accordance with C.R.S. § 31-12-112.
11. No petition for annexation election has been submitted and an election is not required
pursuant to C.R.S. §§ 31-12-107(2) and 31-12-112.
Section 2. Conclusions. Pursuant to C.R.S. § 31-12-110, the Board further finds and concludes
the following.
1. The Property is eligible for annexation pursuant to the applicable parts of C.R.S. §
31-12-104.
2. None of the limitations of C.R.S. § 31-12-105 apply to restrict annexation of the
Property.
3. The requirements of the applicable parts of C.R.S. §§ 31-12-104 and 31-12-105 have
been met.
4. A determination has been made that additional terms and conditions are not to be
imposed.
5. An election is not required under C.R.S. § 31-12-107(2).
6. Said parcel may be annexed by Ordinance pursuant to C.R.S. §§ 31-12-107(1)(g) and
31-12-111 without election.
7. Having found that the Property is eligible to be annexed, the Board hereby resolves
that the parcel should be annexed to the Town by Ordinance and the Board will
undertake further proceedings to pass such an Ordinance confirming and adopting
this Resolution in accordance with the applicable provisions of the Municipal Code
and Municipal Annexation Act of 1965.
READ, PASSED, ADOPTED AND RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FRASER, COLORADO THIS day of , 2013.
BOARD OF TRUSTEES OF THE
TOWN OF FRASER, COLORADO
BY:
Peggy Smith, Town Mayor
ATTEST:
BY:
Lu Berger, Town Clerk
6093818_1
I[
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I
ENEMA
TO P QN"R €1N
Legal DmMption o0roporty
A parcel of INW, being GOVOMmnt Lot 3, t3nrrernment Lot 4 EXCEPT the Westerly 440 hot
thlnw4 and a pordon of the so h 112 of fttioa 19,rind the N I ME 114 of Won 30,all In
Tow hip 1 Sow,Range 75 West oftba .,Gmd t ty,trrrlomdo,more particularly
&,soribsd as follows: ;
ETA r at the Southeast Conm of sold Soodon 19 and-the NorMout Curnor of said
Sin 30,a 3"Iron pipe with a 3-W bras eap stamped USOLO 1933;
Theme South 00"34113" Best 66Vtho oaft1y lkro of said Sc*dDn30 a distance of 1,31129
t-tcr<#hhe Nord Sig �orrter drk'Sactva 29 f d Spc,tlon 3fl,whew alea�r��"
iron pips 1 foot above ground with a 2-%"brass oup ompe .'ILSIJ 12479"beam North
1°28041"East 0.51 fed,akin why tho But QuartcpComor of sold Section 30,a found
2-' " bTaHS cap Stamped "USCLO 1933" bears Sores 00°34'13" East a distance of
1,31719
'11aOnO M06 99*53'10" West along#w Norrth Sf nth'line of said gratfon 30 a distame of
2,624.9 let to the Nbrth-tax Si nth Comer of said Seatf 0, a set 45-re.bar
with a 3-!11 almWuum cap s wpQ "LS 112466911,whence the Center Quamy Carter of
odd Seaton 30, u'found 06 aluminum rod with a 2w3/2n brass cap'stamped "DWD 1.S
#16390,200111 bears South 00"56'13"Bat a riista a of 1,330.77 f=4
ThonaQ S1orffi 001156'13"Went Wong the North-South Centalhw of sold Mon 30 a distance of
1,330.77 feet to the Sofia Qraax r C
ower of said Seedon 19,a not J16 -bar y4th it 3-B"
alumW= oap stataped %8 #24669" re ablishecl-per monument record shoot ties
prepared by 11totim M Ca"ater,.LS#16398,dated 8130/1994;
i
i
SOU&89°.22'12"West along the southerly lire of said Section 19 a distance of 2,181.82
feet to a M 05 ro-b r,with a plastic cap amped „LS MO',wlwnoo a.1-In"aluminum
cop oompod I%S# 11415" bears North 017'06" SM 1,63 tot, also whonce tho
Southwest Comer of said S a 19 Um Sow 89022']2!' 'Fast a.,dIsMoo of 440,00
#to a fatted 2" vW d pip with u2 Ida"brass lap scam "7SOLO 1933";
Thence NoA 00°14'' 11 Won a din of 1,322.19 f ct to a ftud I-W alctzainum dap stampod
"LS 11415';
nowe North h 54°59'4911 FAWt a dh*moo of 1,167.79 foot;
gala KOM 00$09'11"Wdot a dlstanco of 684.99 hot to the horth d8ht of way Brae of C »
73 gas eooWod in Soak 95,Pap 184;
1hence NOA 89"50149"13ast.along said right of way a dice of 1,296,54 foot to tho westerly
I
MUM A
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South 011°14'50"lit along said Cotporate Limit a di oo of 29,94 fact;
"moo Noah 89*48'tf7" East along ealld Rat.Wat of Section 19 a distan0a of
1,303,12 f 10 a sot#5 mbar WJ&a plM&oap s %9 24669" on the w terly j
rift of way be of the Union Puffic UWA WhOM ft fast QUWer CMIer of'said
&odon 1:9,a ibmd 2"pipe Ju aonorft vdth a 2�%,,awgimm cap,hem Xorffi 89"4W07"
a dMaxwo of 1,266.48 feet,
Thonoe along said r ht of vay the followln 8&W( ) !
eods, j
1. South 14040105"Est a Otanvo of 989.32 bet o a.paint of iDW V4t=,a strt,W5 W�W
wlttr a pro M at p %9 9";
Z, ,A.log to a of ate to the le't bavi>ng a OMtW a*e of 59$21029",a arias of
816.78 but-and ao amlengM of#46.18 fcet:(chard bum South 44°20'50"fat, 808,84
fc t),ca -ba with it Plasma cap sNmpad 111A M9,10
3. Soli 74'001'54"But a&W=4415.27 feet to a tip easterly right of way
of CR 72 as t oWd in.Book 105,:Page 278,
Uence Ilea"mdd tU'rdoR Pacific Rdlmad right of MV So th 04038133-Wwt aad alang;said.
r1y right ofway liar OCR-72 a distam of 98.01 fmt,
ThDuco North 89038152"West leavWg said easterly right of way a digtance of 40.11 foes to the
weedy right ofIMY find of said 72y
T moe WorM 04.039138"East along sad westerly right of way DUO a distance of 97,13 hot to a
,faint Of aau-tangant 0MV011UM on the st ttlrerly right of way line of pwor Va11oy
fttfty(01.721: as moorded In Book 450,Pap 480,
MAO 104ving Rid westerly right of way Md.Wong said southerly right of way and along the
am of"a Cmd tO&0 right hkvW a MUSI n9lo QM"287P',a aradius of 244W Let,and
length an No of211.56 fact(dord bom South 65°135158"Wast,205.05
' ed SoWh 00'41 10"WOU 10avbV Bald OOUOMIY dghtDf way a dislam of 1:1.01 feet; j
Thence North 89 038'52"Wed a dislanm d618.10 feet
Thence South 183° 6'05" Bast a distance of 900.010 hot to a eat 45 ra-bar wdth a PIMOO oap
et€uun d 11 2466911, Whoum a found 2-%" iron pipe bam NoAh 25131129" Wei a
distmov of 5.46
fftt-
Thoim Souk 89 3 146"lbst 810t&ft soathorly line of said SeWoA 19 a distance of 899.54 fWt
�
to the POINT OF l3BUMMC.
onWniog 12#8(4,8.%2 square*ot,or295.429 a ,mox or loss.
ts. Uidbat ah
i
TOWN OF FRASER, COLORADO
RESOLUTION NO. 2013- -
A RESOLUTION BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,
COLORADO APPROVING THE APPLICATION FOR SUBDIVISION EXEMPTION
FOR THE TOWN OF FRASER MUNICIPAL PARCEL
WHEREAS, by Ordinance No. , Series 2013, the Board of Trustees of the Town of Fraser,
Colorado (the `Board") approved the annexation to the Town of Fraser, Colorado (the "Town")
of approximately 295 acres of unincorporated land contiguous to the Town in Grand County,
Colorado commonly known as the Byers Peak Ranch (the "Property");
WHEREAS, by Ordinance No. , Series 2013, the Board approved the Byers Peak Ranch
Annexation and Development Agreement between the Town and Byers Peak Properties, LLC
and Byers Peak Downhill Adventures, LLC (the "Annexation Agreement") and authorized the
Town's Mayor to sign the Annexation Agreement;
WHEREAS, by Ordinance No. , Series 2013, in conjunction with the annexation of the
Property, the Board approved the Byers Peak Ranch Planned Development District Plan (the
"PDD Plan");
WHEREAS, pursuant to the annexation of the property and approval of the Annexation
Agreement and the PDD Plan, the Byers Peak Properties, LLC and Byers Peak Downhill
Adventures, LLC (together, the "Developers") desire to dedicate 6 acres in PA-1 Planning Area
of the PDD Plan to the Town, more specifically described on Exhibit A attached hereto and
incorporated herein, to be used for municipal purposes, including but not limited to community
facilities (the "Municipal Parcel") under the terms and conditions described in the Annexation
Agreement;
WHEREAS, the Developers have applied to the Town for a subdivision exemption for the
Municipal Parcel attached hereto and incorporated herein as Exhibit B (the "Subdivision
Exemption Application"); and
NOW, THEREFORE, BE IT RESOLVED by the Board of Trustees of the Town of Fraser,
County of Grand, State of Colorado:
The Subdivision Exemption Application attached hereto as Exhibit B associated with the
annexation of the Property be and is approved under the terms and conditions described in the
Subdivision Exemption Application and the Annexation Agreement.
The Board has determined that the above-described Subdivision Exemption Application shall be
approved by resolution only, and does not require a subdivision exemption plat to be provided to
and approved by the Town Planning Commission.
The Board directs the Director of Planning for the Town to provide a copy of this Resolution to
the Developers.
1
This Resolution shall serve as an agreement binding the Developers to the terms and conditions
of the attached Subdivision Exemption Application.
INTRODUCED, READ, APPROVED, ADOPTED AND RESOLVED this day of
February, 2013.
TOWN OF FRASER
By:
Peggy Smith, Town Mayor
ATTEST:
By:
Lu Berger, Town Clerk
6052007_1
2
TOWN OF FRASER
RESOLUTION NO. 2013-05-04
RESOLUTION BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER
APPROVING THE SERVICE PLAN AMENDMENT
FOR THE BYERS VIEW,WEST MOUNTAIN,AND WEST MEADOW
METROPOLITAN DISTRICTS
WHEREAS, the Town of Fraser, Colorado (the"Town"), is a political subdivision of the
State of Colorado, duly organized and existing pursuant to the laws and the Constitution of the
State; and
WHEREAS, pursuant to the provisions of the"Special District Control Act", Part 2 of
Article 1, Title 32, C.R.S., on February 22, 2013, the Boards of Directors of the Byers View
Metropolitan District, the West Mountain Metropolitan District, and the West Meadow
Metropolitan District (the"Districts")filed with the Clerk of the Town Amendments to the First
Amended and Restated Consolidated Service Plan for the Districts ("Service Plan Amendment")
for the purposes of amending the Consolidated Service Plan of the Districts to:
(i) authorize the Inclusion of Byers Peak Ranch, more particularly described in
Exhibit C-1 of the Service Plan Amendment;
(ii) increase the total costs of infrastructure required by the inclusion of the Byers
Peak Ranch into the boundaries of the District;
(iii) increase the total authorized debt to accommodate the costs of infrastructure for
the Byers Peak Ranch; and
(iv) extend the time period to issue and pay off the additional debt authorization;
(v) reduce the Debt Service Mill Levy from a maximum of 50 mills to 35 mills;
(vi) require recording of a Disclosure Summary; and
WHEREAS, this Board of Trustees of the Town has fully considered the Service Plan
Amendment and all testimony and other evidence presented to it in this matter relating to the
Service Plan Amendment.
NOW,THEREFORE,BE IT RESOLVED BY THE BOARD OF TRUSTEES,
TOWN OF FRASER, STATE OF COLORADO:
Section 1. The Board of Trustees hereby determines that all of the jurisdictional and
other requirements of Sections 32-1-207 and 32-1-204.5, C.R.S.,have
been fulfilled, including those relating to the filing and form of the Service
Plan Amendment.
f 00319091.DOC/}
Section 2. Based upon the information contained within the Service Plan
Amendment and evidence presented to the Board of Trustees hereby finds
and determines as follows:
(i) There is sufficient existing and projected need for organized
services of the nature proposed in the Service Plan Amendment in
the area serviced by the Districts;
(ii) The existing services in the area to be served by the Districts are
inadequate for present and projected needs;
(iii) The Districts are capable of providing economical and sufficient
services to the area within its boundaries; and
(iv) The area within the Districts has the financial ability to discharge
the proposed amendments to the indebtedness on a reasonable
basis.
Section 3. The Service Plan Amendment of the Districts shall be and is hereby
approved without conditions.
Section 4. The Town Clerk is hereby directed to advise the Districts in writing of this
action and to attach a certified copy of this Resolution.
Section 5. All Resolutions, or parts thereof, in conflict with the provisions hereof, are
hereby repealed to the extent of such conflict only.
Section 6. This Resolution, immediately upon its passage, shall be authenticated by
the signatures of the Town Mayor and the Town Clerk and sealed with the
corporate seal of the Town.
Section 7. This Resolution is necessary for the public health, safety and welfare of
the citizenry of the Town.
MOVED,READ AND ADOPTED by the Board of Trustees of the Town of Fraser,
Colorado, at its regular meeting held the day of ) 2013.
TOWN OF FRASER, COLORADO
By:
Peggy Smith, Mayor
ATTEST:
Lu Berger, Town Clerk
6213935_1
TOWN OF FRASER
RESOLUTION NO. 2013-05-05
A RESOLUTION OF THE FRASER BOARD OF TRUSTEES,APPROVING A
DEVELOPMENT PERMIT TO OPERATE AN OUTDOOR ADVENTURE PARK AND
RECREATION AREA IN THE TOWN OF FRASER SUBSEQUENT TO THIS PARCEL
BEING ANNEXED INTO THE TOWN OF FRASER, COLORADO.
WHEREAS, Fraser acknowledges that the Colorado Adventure Park is an existing
permitted use in Grand County granted via a Special Use Permit,permitting the operation of an
outdoor adventure park and recreation area located in the SE '/4 of Section 19 and the NE 1/4 of
Section 30, Township 1 South, Range 75 West of the 6th P.M., County of Grand, State of
Colorado; and
WHEREAS, it is the intent of the Board of Trustees, to annex Byers Peak Ranch into
Fraser and this 35 acre parcel described herein,which contains the Colorado Adventure Park, is
part of the 295 acre ranch proposed to be annexed into Fraser;
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN
OF FRASER, COLORADO THAT:
The Fraser Town Board approves the attached Development Permit to operate an outdoor
adventure park and recreation area located in the SE '/4 of Section 19 and the NE '/4 of Section
30, Township 1 South, Range 75 West of the 6th P.M., County of Grand, State of Colorado.
DULY MOVED, SECONDED, AND ADOPTED THIS 29th DAY OF MAY, 2013.
TOWN OF FRASER BOARD OF TRUSTEES
BY:
Peggy Smith,Mayor
ATTEST:
Lu Berger, Town Clerk
TOWN OF FRASER
RESOLUTION NO. 2013-05-06
A RESOLUTION BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,
COLORADO APPROVING THE BYERS PEAK RANCH GRADING AND
EXCAVATION OPERATIONS PLAN IN CONJUNCTION WITH THE BYERS PEAK
RANCH ANNEXATION AND PDD PLAN APPROVAL
WHEREAS, by Ordinance No. , Series 2013, the Board of Trustees of the Town of Fraser,
Colorado (the "Board") approved the annexation to the Town of Fraser, Colorado (the "Town")
of approximately 295 acres of unincorporated land contiguous to the Town in Grand County,
Colorado commonly known as the Byers Peak Ranch(the"Property");
WHEREAS, by Ordinance No. , Series 2013, the Board approved the Byers Peak Ranch
Annexation and Development Agreement between the Town and Byers Peak Properties, LLC
and Byers Peak Downhill Adventures, LLC (the "Annexation Agreement") and authorized the
Town's Mayor to sign the Annexation Agreement;
WHEREAS, by Ordinance No. , Series 2013, in conjunction with the annexation of the
Property, the Board approved the Byers Peak Ranch Planned Development District Plan (the
"PDD Plan");
WHEREAS, Byers Peak Properties, LLC and Byers Peak Downhill Adventures, LLC (together,
the "Developer") contemplate certain grading and excavating operations for the purposes of pond
excavation and sale of gravel offsite within Fraser in specific Planning Areas, as defined in the
PDD Plan; and
WHEREAS, the Town Staff has prepared the Byers Peak Ranch Grading and Excavation
Operations Plan dated May 20, 2013 (the "Grading and Excavation Plan"), attached hereto as
Exhibit A and incorporated herein, to regulate such grading and excavating operations in
addition to those provisions set forth in the Annexation Agreement.
NOW, THEREFORE, BE IT RESOLVED by the Board of Trustees of the Town of Fraser,
County of Grand, State of Colorado:
The Grading and Excavation Plan attached hereto as Exhibit A associated with the annexation of
the Property and the approval of the PDD Plan be and is approved.
The Board directs the Director of Planning for the Town to provide a copy of this Resolution to
the Developer.
This Resolution shall serve as an agreement binding the Developer to the aforementioned
Grading and Excavations Plan.
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INTRODUCED, READ, APPROVED, ADOPTED AND RESOLVED this day of
, 2013.
TOWN OF FRASER
By:
Peggy Smith,Mayor
ATTEST:
By:
Lu Berger, Town Clerk
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Service Plan Amendments
to the
First Amended and Restated Consolidated Service Plan
for the
West Mountain Metropolitan District, West Meadow Metropolitan District
and Byers View Metropolitan District (the "Districts")
Section I: The legal description and map depicting the future inclusion property (Byers Peak
Ranch, approximately 295 acres to be included in the West Mountain Metropolitan District) to
be included within the boundaries of the Districts, subject to Town approval, are attached as
Exhibit C-1.
Section IVs The list of facilities to be provided and the engineer's preliminary infrastructure
cost estimates on Page 4 are amended by the addition of$3,868,000 for 60 acre feet of Water
Storage; plus the following additional amounts for the additional infrastructure required for the
Byers Peak Ranch parcel: Sanitation: $13,850,000; Street Improvement and Drainage:
$25,172,00; Water: $ 14,009,000; the total of all increases is $57,000,000. The Districts can
only support the reimbursement of$30,000. Notwithstanding anything to the contrary
contained herein, the total amount of debt which may be issued by the Districts is increased
by $30,000,000 for a new maximum of One-Hundred-Twenty-Nine Million dollars
($129,000,000).
The Districts may impose a mill levy for the purpose of levying taxes to pay the Districts'
operations and maintenance expenses, but such amounts shall be limited to administrative
expenses and shall not exceed $35,000 per year in 2013 Dollars, as may be increased over time
in amounts not exceeding increases in the Denver-Boulder-Greeley Consumer Price Index (CPI)
after 2013, or as otherwise approved by the Town.
Section V: The debt service mill levy cap for the District shall be reduced from a 50 mill cap
for debt service purposes to a 35 mill cap for debt service purposes. All such debt obligations
must be issued by the Districts on or before December 31, 2050. All such debt must mature on
or before December 31, 2070.
Notwithstanding anything else herein to the contrary, such debt obligations shall be subject to a
mill levy not to exceed 35 mills (for debt service), except for changes in the method of
calculating assessed valuation (a Gallagher adjustment).
The Districts shall prepare and record in the records of the Grand County Clerk and Recorder a
Disclosure Statement substantially in the form attached hereto.
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Approved , 2013
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(00319115.DOCX/3)
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TOWN OF FRASER, COLORADO
RESOLUTION NO.
RESOLUTION BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER
APPROVING THE SERVICE PLAN AMENDMENT
FOR THE BYERS VIEW, WEST MOUNTAIN, AND WEST MEADOW
METROPOLITAN DISTRICTS
WHEREAS, the Town of Fraser, Colorado (the"Town"), is a political subdivision of the
State of Colorado, duly organized and existing pursuant to the laws and the Constitution of the
State; and
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WHEREAS, pursuant to the provisions of the "Special District Control Act", Part 2 of
Article 1, Title 32, C.R.S., on February 22, 2013, the Boards of Directors of the Byers View
Metropolitan District, the West Mountain Metropolitan District, and the West Meadow {
Metropolitan District(the "Districts") filed with the Clerk of the Town, Amendments to the First
Amended and Restated Consolidated Service Plan for the Districts ("Service Plan Amendment")
for the purposes of amending the Consolidated Service Plan of the Districts to:
(i) authorize the inclusion of Byers Peak Ranch, more particularly described in
Exhibit C-1 of the Service Plan Amendment;
(ii) increase the total costs of infrastructure required by the inclusion of the Byers
Peak Ranch into the boundaries of the District;
(iii) increase the total authorized debt to accommodate the costs of infrastructure for
the Byers Peak Ranch; and
(iv) extend the time period to issue and pay off the additional debt authorization;
(v) reduce the Debt Service Mill Levy from a maximum of 50 mills to 35 mills;
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(vi) require recording of a Disclosure Summary; and
WHEREAS, the Board of Trustees of the Town has fully considered the Service Plan
Amendment and all testimony and other evidence presented to it in this matter relating to the
Service Plan Amendment,
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NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES, j
TOWN OF FRASER, STATE OF COLORADO:
Section 1. The Board of Trustees hereby determines that all of the jurisdictional and
other requirements of Sections 32-1-207 and 32-1-204.5, C.R.S., have
been fulfilled, including those relating to the filing and form of the Service
Plan Amendment.
100319091.DOC/}
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Section 2. Based upon the information contained within the Service Plan
Amendment and evidence presented to the Board of Trustees hereby finds
and determines as follows:
(i) There is sufficient existing and projected need for organized
services of the nature proposed in the Service Plan Amendment in
the area serviced by the Districts;
(ii) The existing services in the area to be served by the Districts are
inadequate for present and projected needs;
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(iii) The Districts are capable of providing economical and sufficient
services to the area within its boundaries; and
(iv) The area within the Districts has the financial ability to discharge j
the proposed amendments to the indebtedness on a reasonable
basis.
Section 3. The Service Plan Amendment of the Districts shall be and is hereby
approved without conditions.
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Section 4. The Town Clerk to the Board of Trustees is hereby directed to advise the
Districts in writing of this action and to attach a certified copy of this
Resolution,
Section 5. All Resolutions, or parts thereof, in conflict with the provisions hereof, are
hereby repealed to the extent of such conflict only.
Section 6. This Resolution, immediately upon its passage, shall be authenticated by
the signatures of the Town Mayor and the Town Clerk and sealed with the
corporate seal of the Town.
Section 7. This Resolution is necessary for the public health, safety and welfare of
the citizenry of the Town.
MOVED, READ AND ADOPTED by the Board of Trustees of the Town of Fraser,
Colorado, at its regular meeting held the day of , 2013.
TOWN OF FRASER, COLORADO
By:
Peggy Smith, Mayor
ATTEST:
Lu Berger, Town Clerk
{00319091.Dac/}
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EXHIBIT H
TO THE BYERS PEAK RANCH ANNEXATION AND DEVELOPMENT AGREEMENT
Legal Description of the Municipal Parcel
Being prepared by surveyor and will be provided by Developer as soon as survey is complete.
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Subdivision Exemption Applications to be provided as soon as survey of the legal
description of the Municipal Parcel is complete.
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TOWN OF FRASER, COLORADO
RESOLUTION NO. 2013w_�_
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A RESOLUTION BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER,
COLORADO APPROVING THE APPLICATION FOR SUBDIVISION EXEMPTION
FOR THE TOWN OF FRASER MUNICIPAL PARCEL
WHEREAS, by Ordinance No. _, Series 2013, the Board of Trustees of the Town of Fraser,
Colorado (the `Board") approved the annexation to the Town of Fraser, Colorado (the "Town")
of approximately 295 acres of land south of the Town in Grand County, Colorado commonly
known as the Byers Peak Ranch(the "Property");
WHEREAS, by Ordinance No. _, Series 2013, the Board approved the Byers Peak Ranch
Annexation and Development Agreement between the Town and Byers Peak Properties, LLC
and Byers Peak Downhill Adventures, LLC (the "Annexation Agreement") and authorized the
Town's Mayor to sign the Annexation Agreement;
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WHEREAS, by Ordinance No. _, Series 2013, in conjunction with the annexation of the
Property, the Board approved the Byers Peak Ranch Planned Development District Plan (the
"PDD Plan");
WHEREAS, pursuant to the annexation of the property and approval of the Annexation
Agreement and the PDD Plan, the Byers Peak Properties, LLC and Byers Peak Downhill
Adventures, LLC (together, the "Developers") desire to dedicate 6 acres in PA-1 Plamiing Area
of the PDD Plan to the Town, more specifically described on Exhibit A attached hereto and
incorporated herein, to be used for municipal purposes, including but not limited to community
facilities (the "Municipal Parcel") under the terms and conditions described in the Annexation
Agreement;
WHEREAS, the Developers have applied to the Town for a subdivision exemption for the
Municipal Parcel attached hereto and incorporated herein as Exhibit B (the "Subdivision
Exemption Application"); and
NOW, THEREFORE, BE IT RESOLVED by the Board of Trustees of the Town of Fraser,
County of Grand, State of Colorado:
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The Subdivision Exemption Application attached hereto as Exhibit B associated with the
annexation of the Property be and is approved under the terms and conditions described in the
Subdivision Exemption Application and the Annexation Agreement,
The Board has determined that the above-described Subdivision Exemption Application shall be
approved by resolution only, and does not require a subdivision exemption plat to be provided to
and approved by the Town Planning Commission.
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The Board directs the Director of Planning for the Town to provide a copy of this Resolution to
the Developers.
This Resolution shall serve as an agreement binding BPP and BPD to the terms and conditions of
the attached Subdivision Exemption Application.
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INTRODUCED, READ, APPROVED, ADOPTED AND RESOLVED this day of
February, 2013.
TOWN OF FRASER
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By:
Mayor
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ATTEST:
Town Clerk
6052007 1
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Lu Berger
From: Jane Mather [mailto:jmather(a)criticalcore.com]
Sent: Tuesday, May 14, 2013 12:20 PM
To: Jeff Durbin; Nat Havens; Catherine Trotter; Allen Nordin; Cheri Sanders; Steve Sumrall; Eileen Waldow; Adam
Cwiklin; Philip Naill; Vesta Shapiro; Peggy Smith
Subject: Questions for Town staff regarding BPP annexation
Town Staff and Members of the Town Board of Trustees,
Please see the attached preliminary list of questions which I believe need to be answered before the Town Board of Trustees can
make a decision about the proposed annexation. I will be asking summary versions of these at the upcoming town meetings.
Depending on the answers to these questions, a better agreement than the current proposal possibly could be negotiated. This
belief is based on my training and experience as a professor of real estate and economics at a top five business school(Booth
School of Business at the University of Chicago) and as a practicing real estate professional for major Fortune 100 corporations,
downtown Chicago commercial office tenants, and municipalities.
I am concerned that we have not received this information in response to previous questions. If this is because this information
has not already been collected and evaluated as part of these negotiations,the negotiations to date do not reflect good
negotiating practices from an economic perspective,which could cost the Town millions of dollars. There is a whole field
called"Law and Economics," which was established because most lawyers did not have the training to evaluate the financial
issues in agreements. There are many litigation support firms staffed with economists,in addition to accountants,to provide
evidence in court cases because issues can be economic rather than legal.
If you believe my assistance would be beneficial,I would be willing to work as a consultant to assist in collecting this
information, evaluating it,potentially revising this proposed agreement to reflect answers to these questions, other community
member concerns and questions, and community member vision for Fraser,to the extent that it can be provided given Fraser
zoning and other long-term plans. I have started to collect some of this information to better understand what questions to ask.
As this type of work is my business, and because of the extent of the work that needs to be completed,I cannot do this work on
a volunteer basis. You would not request that a local lawyer provide his or her work for free to this extent nor would you
expect Philip Naill to provide marketing and design services for free, as a few examples.
Please let me know if you would like any assistance. Otherwise, I look forward to answers to these questions.
Sincerely,
Jane
Jane Mather,Ph.D.
CriticalCore
0mathe1 criti cal core.com
PO Box 187, Fraser, CO 80442
o-970.726.9500 1 c-720.201.4487
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